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Third Appellate District No. C029439


No. S087265.


California Supreme Court Respondent's Brief.


August 21, 2000.








Attorney for Appellant ROSE WENDLAND






Table of Authorities ... iii



I. Introduction ... 1



II. Factual and Procedural Background ... 2



III. Argument ... 3



A. 2355 as Applied to Robert Wendland in This Case Does Not Violate Any of His Constitutional Rights. ... 3



B. Florence's Constitutional Challenges to the Validity of 2355 are Exclusively Facial in Nature. Based on Long-Standing, Basic Rules of Constitutional Adjudication, These Challenges All Fail. ... 6



C. No Action by a Conservator, Including a Decision to Refuse Life-Sustaining Medical Treatment on behalf of a Conservatee, Is State Action and Therefore Is Not a Deprivation of Life or Liberty without Due Process of Law in Violation of the 14 superth Amendment of the Federal Constitution and of Article 1, 7 of the California Constitution. ... 8



1. Federal and California Precedent Firmly Establishes that Conservators are Not State Agents Whose Conduct is Regulated by the Constitution. ... 8



2. As Conservators' Actions Are Not State Action and Not Subject to Constitutional Requirements, the Proper Evidentiary Standard of Proof Under 2355 is that Set by the Legislature: the Preponderance of the Evidence. ... 12



D. Probate Code 2355 Does Not Violate Robert's Right to Due Process under the Federal and California Constitutions. ... 15



1. The content of 2355 as amended and effective today. ... 15



ii 2. Legislative Purpose and State Interests ... 18



3. 2355 Does Not Violate Robert's Right to Substantive Due Process. ... 23



I. Cruzan and Due Process ... 24



II. The Best Interests Objection ... 27



III. The Right to Life Objection ... 31



IV. The Vagueness Objection ... 35



4. 2355 Does Not Violate Robert's Right to Procedural Due Process. ... 38



E. 2355 Does Not Violate Robert's Right to Equal Protection. ... 38



F. 2355 constitutes a measured, reasonable, and constitutionally permissible legislative response to the practical necessity of medical decision making for incompetent adults. ... 40



G. In Light of the Amendments to 2355 Effective July 1, 2000 and the Factual Findings of the Superior Court, This Court Should End This Litigation as a Matter of Law. ... 44



IV. Conclusion ... 48









Addington v. Texas (1979) 441 U.S. 418 ... 25



American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 ... 28, 29



Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243 ... 30



Barber v. Superior Court (1983) 147 Cal.App.3d 1006 ... 13, 18, 29, 42, 43



Bartling v. Superior Court (1984) 163 Cal.App.3d 186 ... 18



Bernard v. Bank of America (1942) 19 Cal.2d 807 ... 46



Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127 ... 18



Brian W. v. Superior Court (1978) 20 Cal.3d 618 ... 15



Brock v. Superior Court (1939) 12 Cal.2d 605 ... 5



Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273 ... 47



Castro v. State of California (1970) 2 Cal. 3d 223 ... 5



Choudhry v. Free (1976) 17 Cal. 3d 660 ... 5



Civil Rights Cases (1883) 109 U.S. 3 ... 9



Colombrito v. Kelly (1985) 762 F.2d 122 (2 supernd Cir.) ... 10



Conservatorship of Angela D. (1999) 70 Cal.App.4th 1410 ... 39



Conservatorship of Drabick (1988) 200 Cal.App.3d 185, cert. denied, 488 U.S. 958 ... 14, 19, 20, 21, 22, 25



iv Conservatorship of Morrison (1988) 206 Cal.App.3d 304 ... 21, 35, 36



Conservatorship of Wendland (2000) 78 Cal.App.4th 517 ... 13, 45



County of Los Angeles v. Legg (1936) 5 Cal.2d 349 ... 7



County of Nevada v. MacMillen (1974) 11 Cal. 3d 662 ... 6



Cruzan v. Harmon (1989) 760 S.W.2d 408 (Mo.) ... 43



Cruzan. v. Director, Missouri Department of Health (1990) 497 U.S. 261 ... 15,22, 24-26, 33, 39



Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703 ... 29



Dawn D. v. Superior Court (1998) 17 Cal.4th 932 ... 30



Dept. of Soc. Serv. v. Sup. Ct. (1997) 58 Cal.App.4th 721 ... 30



Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 ... 7



Hale v. Morgan (1978) 22 Cal. 3d 388 ... 5



Home Depot, U.S.A., Inc. v. Contractors' State License Bd. (1996) 41 Cal.App.4th 1592 ... 7



In re Colyer (1983) 660 P.2d 738 (Wash.) ... 32



In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 ... 47



In re Marriage of Siller (1986) 187 Cal.App.3d 36 ... 4, 5



In re Martin (1995) 538 N.W.2d 399 (Mich.) ... 13, 42, 43



In re Sophia B. (1988) 203 Cal.App.3d 1436 ... 30



*v In re Valerie N. (1985) 40 Cal.3d 1130 ... 14, 38, 39, 40



In re Westchester Cty. Med. Ctr. (1988) 72 N.Y.2d 517, 531 N.E.2d 607 ... 43



In the Matter of Edna M.F. (1997) 563 N.W.2d 485 (Wi.) ... 43



Johnson v. Calvert (1993) 5 Cal.4th 84 ... 29, 43



Kruger v. Wells Fargo Bank (1974) 11 Cal.3d 352 ... 9, 11, 12, 15



L.A. County. Dept. of Children and Family Services v. Superior Court (1998) 62 Cal.App.4th 1 ... 30-31



Malachowski v. Keene (1986) 787 F.2d 704 (1 superst Cir.) ... 10



Matter of Conroy (1985) 486 A.2d 1209 ... 32



Matter of Guardianship of L.W. (1992) 482 N.W.2d 60 (Wis.) ... 32



Meeker v. Kirch (1986) 782 F.2d 153 (10 superth Cir.) ... 10



Musso v. Suriano (1978) 586 F.2d 59 (7th Cir.), cert. denied, 440 U.S. 971 ... 10



People v. Hsu (2000) 2000 Daily Journal D.A.R. 8607 ... 35



People v. Wingo (1975) 14 Cal. 3d 169 ... 4, 5



Reitman v. Mulkey (1967) 387 U.S. 369 ... 12



Robinson v. Florida (1964) 378 U.S. 153 ... 12



Shelley v. Kramer (1948) 334 U.S. 1 ... 9



Snyder v. Talbot (1993) 836 F. Supp. 19 (D. Me.) ... 10



Spencer v. Lee (1989) 864 F.2d 1376 (7 superth Cir.) ... 10



*vi Stantosky v. Kramer (1982) 455 U.S. 745 ... 25



State Dept. of Hum. Res. v. Northern (1978) 563 S.W.2d 197 (Tenn. Ct. App.) ... 3



Super. Of Bel. St. Sch. v. Saikewicz (1977) 370 N.E.2d 417 ... 28



Taylor v. First Wyoming Bank, 707 F.2d 388 ... 9, 10



Thompson v. Oklahoma (1988) 487 U.S. 815 ... 34



Thor v. Superior Court (1993) 5 Cal.4th 725 ... 18, 19, 21, 23, 48



Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 ... 7



Vacco v. Quill (1997) 521 U.S. 793 ... 32, 33



Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 ... 15



Yick Wo v. Hopkins (1886) 118 U.S. 356 ... 5






Code of Civil Procedure 631.8 ... 46



Code of Civil Procedure 634 ... 47



Code of Civil Procedure 909 ... 46, 47



Evidence Code 115 ... 14



Family Code 8704 ... 31



Probate Code 1470-72 ... 38



Probate Code 1801(e) ... 14, 38



*vii Probate Code 1812 ... 38



Probate Code 1822 ... 38



Probate Code 1826 ... 38



Probate Code 1829 ... 38



Probate Code 1950 et seq. ... 38, 39



Probate Code 2101 ... 30, 45



Probate Code 2355 ... passim



Probate Code 2356.6 ... 14



Probate Code 4615 ... 16, 17



Probate Code 4617 ... 16, 17



Probate Code 4623 ... 17



Probate 4670-4743 ... 13



The Health Care Decisions Act, 4600-4805 ... 18



Welfare & Institutions Code 366.26(j) ... 31



Welfare & Institutions Code 4502 ... 20






Alabama 22-8A-1 et seq ... 41



Arizona Rev. Stat. 36-3203(C) & (D), 36-3231(D) ... 42



Delaware Title 16, 2501 et seq ... 41



*viii Hawaii Ch. 327E-1 et seq ... 41



Maine Title 18-A, 5-801 et seq. ... 41



Mississippi 41-41-201 et seq ... 41



New Mexico 24-7A-1 et seq ... 41






Calif. Rule of Court 29.3(c) ... 5



California Rules of Court 232(d) ... 47






14 superth Amendment to the U.S. Constitution ... 8, 9



Article 1, 1 of the California Constitution ... 35



Article 1, 7 of the California Constitution ... 8



Article I, 13 of the California Constitution ... 9






Gerald Kelly, S.J., Medico-Moral Problems (1958) ... 4



Alan Meisel, The Right to Die (Supp. 2000) ... 27, 28



Michelle Mello, Death, Life, and Uncertainty: Allocating the Risk of Error in the *ix Decision to Terminate Life Support, 109 Yale L. J. 635-642 (1999) ... 28



64 Op. Calif. Atty. Gen. 712 (1981) ... 11



James Rachels, The End of Life (1986) ... 34



1 Sutherland, Statutory Construction (Sands, 4th ed. 1985) 2.06 ... 5



Uniform Health-Care Decisions Act ... 40



*1 I. Introduction


The single issue presented in Florence's petition for review boils down to whether "appropriate" policy reasons underlie Probate Code 2355's [FN1] standards for medical decision making by conservators on behalf of conservatees. This is a question the judiciary cannot answer. Florence's wish that the California Legislature had adopted a different version of 2355--a wish that has permeated her arguments in this litigation for over 5 years-- should be taken to the Legislature where it belongs, and summarily ignored by this Court as well. As the plain language of a facially constitutional statute permits Rose Wendland to refuse medically provided nutrition and hydration on behalf of her husband and conservatee, Robert, Florence's insistence that a different law informed by different policy be imposed by this Court cannot be honored without doing violence to fundamental democratic and constitutional separation of powers principles.



FN1. All statutory references are to the Probate Code unless otherwise noted.



Florence's opening brief asks this Court to strike down 2355 as unconstitutional. She essentially urges this Court to make constitutional law in true Rube Goldberg fashion. She has concocted an amazing contraption of scavenged bits and pieces of law and constitutional doctrine from hither and yon (from inapplicable out-of-state cases, U.S. Supreme Court excerpts often pulled badly out of context, and from plain-old thin air), littered it with proverbial red herrings, [FN2] put it together with analytically fragile bailing wire as well as poorly disguised ideological single-mindedness, and offered it to this Court as carefully reasoned constitutional law. This the judiciary should not accept.



FN2. Webster's New Twentieth Century Unabridged Dictionary defines "red herring" as "something used to confuse or divert attention from something else."



It is true that Robert's life is at stake in this litigation, but "life" in both *2 the biological and biographical sense of the word. Rose does not deny that her decision to refuse further tube feeding of her husband is a weighty and difficult ethical decision. But California law gives this decision to her and to her alone. She must do the morally right thing according to her conscience, and this is within applicable statutory standards. As the Legislature has chosen these standards, this Court should only decide whether these pass constitutional scrutiny. Most important, it need not make the ethical and personal decisions about Robert's ultimate fate as these rightly belong to his wife and close family.


By upholding 2355 as constitutional, this Court will not be placing the lives of the disabled at risk or inviting some Holocaust of the helpless perpetrated by irresponsible conservators, superior court judges, physicians, and health facilities. It will instead allow conserved incompetent adults to be benefitted by medical treatment or relieved of the pain, burden, and intrusiveness of that treatment on a case-by-case basis, with individual decisions made by judicially appointed and supervised conservators and with constitutionally adequate safeguards placed on the process by 2355. Upholding 2355 respects the dignity of mentally disabled conservatees and treats them as subjects, not as objects or symbols of a cause. The citizens of California have a compelling interest in ensuring that conservatees be treated like individual human beings with differences and similarities, with rights and interests like other persons that can be protected for them by their conservators.


II. Factual and Procedural Background


To avoid repetition, Rose adopts Robert's statement of facts and legal procedure, but with the addition of the following few comments. Florence is trying to induce this Court to recast the law in light of her version of "the facts" of Robert's medical condition, a version which makes it sound as if he has multiple present interests and abilities that make any decision to allow him to *3 die an immoral [FN3] act of invidious discrimination. (Respondents' Brief at 8-9 (RB).)



FN3. She also takes gratuitous cheap shots at the character of Rose and her (then teenage) daughter Katie. (RB at 6-7, 22 (thinly veiled references to Rose coveting Robert's life insurance proceeds, her reasons for not just divorcing him, and her "extramarital relationships").) These deserve no rebuttal, but do illuminate the character of Rose's opponents in this litigation.



As both Rose and Robert have responded to these claims below, [FN4] Rose will not repeat her position. [FN5] Instead, she calls the Court's attention to the findings of Judge McNatt regarding Robert's medical condition.



FN4. Rose Reply Brief at 22-29, especially 26-29; Robert's Opening Brief at 9-11.



FN5. However, even though it is not directly relevant to the legal resolution of this appeal, Rose represents to this Court that Robert's medical condition has deteriorated during the long pendency of this litigation and that he is no longer able to perform the activities numbered 1 through 12 as stated in Florence's brief at 8-9. Rose invites this Court to visit Robert if any of its members believe Florence's "facts" influence his or her legal evaluation of the case. There is precedent for appellate judges visiting the patient in "right to die" cases. (See, e.g., State Dept. of Hum. Res. v. Northern (1978) 563 S.W.2d 197 (Tenn. Ct. App.).)



This court explicitly finds, based on the overwhelming body of evidence, that conservatee has no reasonable chance for the return to cognitive and sapient life. Although neither comatose nor persistently vegetative, he remains severely brain damaged, partially paralyzed, totally dependent upon others for all of his needs, unable to communicate, and reliant upon life support for nutrition and hydration. Other than hopes expressed by some witnesses..., there was no medical evidence that conservatee's condition is ever likely to improve past present levels. (JA at 623-24; no need for added emphasis.)

These findings by a judge who did visit Robert and heard all of the medical testimony, combined with the relatively updated medical reports submitted by *4 Robert's attorney with his brief, are what this Court should focus on (though a more current report would show no improvement). Robert is a man with no life that is meaningful to him. He is not in touch with other people, not even his wife and beloved children. He is isolated in a world that he experiences as negative. Further medical treatment cannot change any of this or make his life any better. In light of this, further treatment is "extraordinary" and morally optional in the traditional vocabulary of medical ethics:

[By extraordinary means for preserving life] we mean all medicines, treatments, and operations, which cannot be obtained or used without excessive expense, pain, or other inconvenience, or which, if used, would not offer a reasonable hope of benefit. (Gerald Kelly, S.J., Medico-Moral Problems, 129 (1958).)


III. Argument


A. 2355 as Applied to Robert Wendland in This Case Does Not Violate Any of His Constitutional Rights.


The Court's letter to counsel of June 23 asks them to address two questions:

Does Probate Code section 2355 (as amended by Stats. 1999, ch. 658, effective July 1,2000) authorize the conservator to withdraw artificial nutrition and hydration from the conservatee under the facts of this case? If so, does section 2355 as applied violate any constitutional right of the conservatee?

Florence's opening brief answers neither question at all clearly, and certainly not directly. The first of these must be answered affirmatively as a straightforward application of the plain words of the statute (and Rose explains this infra.) The second entails a very different inquiry.

Where a statute is not vulnerable to facial constitutional attack, a citizen may still contend the operation of the statute violates constitutional rights. ""A statute valid on its face may be unconstitutionally applied. [Citations.]'' (People v. Wingo (1975) 14 Cal. 3d 169, 180....) "Sometimes it is said of a statute which is not void 'on its face' that it nevertheless is invalid as applied. This is a [misnomer], however, for a provision which is only invalid as applied in the facts of a particular case *5 is possibly capable of valid application in another fact situation. In reality, it is only the implementing action which purports to apply the legislation and not the provision itself which is invalid in such cases." (1 Sutherland, Statutory Construction (Sands, 4th ed. 1985) 2.06, pp. 31-32, fn. omitted. (In re Marriage of Siller (1986) 187 Cal.App.3d 36, 50; citations omitted.)

Consequently, the Court's second question asks Florence to explain how the action of the State implementing 2355, i.e., applying it to Robert Wendland, violates his constitutional rights. And it must be the action of the State that triggers the constitutional violation and not Rose's activity because, as she is not a state agent (discussed infra), her activities are not subject to constitutional requirements. It also has to be action originating with the State because

the usual remedy is an order to officials charged with enforcement of the statute to refrain from its unlawful application; the statute itself remains intact and may be applied in other situations where the Constitution is not offended. (See, e.g., Hale v. Morgan (1978) 22 Cal. 3d 388, 404-405 ..., Choudhry v. Free (1976) 17 Cal. 3d 660, 669...; Castro v. State of California (1970) 2 Cal. 3d 223, 225, 243....) (Id. at 51; parallel citations omitted; emphasis added.)


As a threshold matter, Florence has made no showing of any kind that the State has implemented 2355 in a manner that violates Robert's rights. Rose cannot find anything in Florence's opening brief that even vaguely resembles the quintessential example of a facially valid statute being unconstitutionally applied which has been repeatedly cited by this Court in, e.g., People v. Wingo (1975) 14 Cal.3d 169, 180 and Brock v. Superior Court (1939) 12 Cal.2d 605, 610: Yick Wo v. Hopkins (1886) 118 U.S. 356, 373-74 (discriminatory application of a licensing law against Chinese applicants). As the burden is on Florence to make this argument, and to make it explicitly (per Calif. Rule of Court 29.3(c)), and she has failed to do so, the second of the Court's questions must be answered in the negative.


*6 If Florence's claim is that 2355 is susceptible to an unconstitutional application (i.e., that it is overbroad in application), then she is not truly making an "as applied" challenge, and the statute should stand.

Unless a statute facially tenders a present total conflict with constitutional provisions, any overbreadth in a statute is ordinarily cured through case-by-case analysis of the fact situations to which the statute is applied. (County of Nevada v. MacMillen [(1974) 11 Cal. 3d 662, 672].)

In other words, if Florence's concern is that a conservator might be given 2355 authority by a court in an unconstitutional manner, or that a court might somehow review a conservator's actions under the statute in an unconstitutional manner, the remedy is to have the result in that particular case cured by the usual legal processes and not to have the statute declared unconstitutional on its face or as applied. In any event, Florence's opening brief contains no argument that any state action in Robert's case has applied or used 2355 in an unconstitutional manner.


B. Florence's Constitutional Challenges to the Validity of 2355 are Exclusively Facial in Nature. Based on Long-Standing, Basic Rules of Constitutional Adjudication, These Challenges All Fail.


Florence's varied challenges to the constitutionality of 2355 are exclusively facial in nature because they apply to all conservatees--and not just to Robert. They are facial in nature because all conservatees share the same rights (such as the right to life and to equal protection) that she alleges are impermissibly infringed by the statute (Rose's action as conservator being exempt from constitutional scrutiny). The same alleged constitutional defects in 2355 affect all conservatees and not just Robert. In short, the constitutional questions she raises are universal.


Making a facial challenge to this statute places a heavy burden on her. Pointing out possible deficiencies in theoretical cases, having disagreements with the policy the statute espouses, or criticizing its lack of perfection are all insufficient reasons for this Court to find 2355 unconstitutional. *7 To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (emphasis added; citations omitted)).

As a global matter, Florence has plainly not met this burden. None of her arguments demonstrate that 2355's provisions "inevitable pose a present total and fatal conflict" with a conservatee's constitutional rights to due process protection for his life and liberty, to equal protection, and to privacy.


A facial constitutional challenge is very difficult to demonstrate because ""[a]ll presumptions favor the validity of a statute. The court may not declare it invalid unless it is clearly so.'' (Id. at 1102; emphasis added.) In addition, "[a] statute should be construed whenever possible so as to preserve its constitutionality." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 (citations omitted).) Likewise, statutes must be interpreted "with due regard to the language used and the purpose sought to be accomplished" (Home Depot, U.S.A., Inc. v. Contractors' State License Bd. (1996) 41 Cal.App.4th 1592, 1601), and not in the abstract. Finally, the reviewing court should give a statute a reading that reconciles it with the Constitution and doesn't create conflict between the two that need not be there.

The Constitution and the statute are to be read together. If the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution. (County of Los Angeles v. Legg (1936) 5 Cal.2d 349, 353.)


When 2355 is interpreted in a fair and reasonable manner, when its plain language is understood in light of the ends it is trying to achieve, and when it is given the presumption of constitutionality it deserves, Florence's attacks on it cannot stand. Much of her interpretation violates these *8 fundamental rules of constitutional adjudication. Furthermore, her reasoning is often badly strained, weakly grounded in mainstream constitutional analysis, and always colored by one underlying assumption--that the Constitution requires human biological life to be preserved regardless of its quality--which is grounded in ideology rather than the Constitution or sound ethical analysis. Rose's interpretation of 2355 in its proper context and her more detailed defense of its constitutionality follows below.


C. No Action by a Conservator, Including a Decision to Refuse Life-Sustaining Medical Treatment on behalf of a Conservatee, Is State Action and Therefore Is Not a Deprivation of Life or Liberty without Due Process of Law in Violation of the 14 superth Amendment of the Federal Constitution and of Article 1, 7 of the California Constitution.


1. Federal and California Precedent Firmly Establishes that Conservators are Not State Agents Whose Conduct is Regulated by the Constitution.


Florence asserts that Rose's decision to forgo further use of medically provided nutrition and hydration, and the concomitant decision to allow him to die of natural causes, impermissibly deprives Robert of his constitutionally protected right to life.

Constitutionally-decreed checks and balances dictate that...the conservatee's right to life must supercede the conservatee's right to have a surrogate decision-maker vicariously exercise his/her right to make treatment--if that vicarious exercise would result in the conservatee's death." (Respondents' Brief at 12 (RB).)

This argument rests on the assumption that Robert's constitutional rights are implicated precisely because he is being deprived of life by Rose's decision to refuse medical treatment. There is no other way to intelligibly read this sentence (no model of clarity in the first place) given its concluding clause ("if that vicarious exercise would result in the conservatee's death") and its reference to "the conservatee's right to life."


However, Florence's argument here--and any argument claiming that Rose's action as conservator violates the Federal or California Constitution-- *9 trips and falls on the critical threshold issue for any constitutional argument like this: whether state action is present to trigger constitutional applicability. In this instance, the issue is whether it is the state that is depriving Robert of life or liberty when a conservator refuses life-sustaining medical treatment on behalf of her conservatee. As Rose is not a state agent, her decisions as conservator for Robert, whatever they may be, cannot violate the Constitution.

The Fourteenth Amendment provides that " No state shall ... deprive any person of life, liberty, or property, without due process of law." (Italics added.) As stated in Shelley v. Kramer (1948) 334 U.S. 1, 13..., the only action inhibited by the due process clause is "such action as may fairly be said to be that of the States. [The Fourteenth] Amendment erects no shield against merely private conduct, however discriminatory or wrongful. (Kruger v. Wells Fargo Bank (1974) 11 Cal.3d 352, 358) (parallel citations omitted.)

Put succinctly, "private action, however hurtful, is not unconstitutional. (Civil Rights Cases (1883) 109 U.S. 3, 11.)" (Id. at 358.) Private action cannot offend the due process clause of Article I, 13 of the California Constitution either. (Id. at 366-67.)


Overwhelming judicial authority in both the federal and California courts unarguably demonstrates that the acts of a conservator acting on behalf of a conservatee do not constitute the state action necessary to trigger constitutional scrutiny. First, federal authority strongly and expressly rejects the claim that a court appointed guardian or conservator is a state actor. In Taylor v. First Wyoming Bank (1983) 707 F.2d 388, 389 (9 superth Cir.), the court held that the actions of a guardian of the person and estate of an adult judicially declared to be incompetent (Ms. Taylor) did not constitute action under color of state law and that the ward's 1983 action against the guardian for violation of the ward's civil rights was properly dismissed for failure to state a claim. It set forth the standards for identifying state action as follows.

Action under color of state law normally consists of action taken by a public agency or officer. When taken by a private person, "[t]he mere *10 fact that a business is regulated by state law or agency does not convert its dealings into acts "under color of state law".... A private action may constitute an action under color of state law if the private person wilfully participates in joint action with the state or its agents.... The private action may also be under color of state law if it constitutes the exercise of "some power delegated to [[the private person] by the state which is traditionally associated with sovereignty" or is "traditionally exclusively reserved to the state".... (Id.; citations omitted)

Rose, like the bank in Taylor, is obviously a private person and not a ""public agency or officer" or a state employee. Just like the state in Taylor, the state is not responsible for Robert's personal care as it would be if he were a ward of the state.

[Ms. Taylor] is in no sense a ward or responsibility of the state. The guardian, in the performance of her duties, was not participating in joint action with the state or acting for the state or serving a public function. Her actions did not constitute the exercise of power traditionally associated with sovereignty or reserved to the state. (Id.)


Likewise, Rose is acting on the basis of her own conscience when deciding what medical treatment is appropriate for her husband; she is not participating in ""joint action" with the state or "serving a public function." She is serving the very private and individual function of determining the morally proper course of her husband's life. None of this is exercising a "public function" of the state. The care of the incompetent, sick, and elderly "has traditionally been a function associated with the family, not with sovereignty". (Musso v. Suriano (1978) 586 F.2d 59, 63 (7th Cir.), cert. denied, 440 U.S. 971)


The 9 superth Circuit holding in Taylor is but one of many that has reached the same result: judicially appointed guardians and conservators are not state actors. See, e.g., Meeker v. Kirch (1986) 782 F.2d 153 (10 superth Cir.) (court-appointed guardian ad litem not a state actor because she owes her undivided loyalty to the ward, just as Rose does); Colombrito v. Kelly (1985) 762 F.2d 122 (2 supernd Cir.); Malachowski v. Keene (1986) 787 F.2d 704 (1 superst Cir.); *11Snyder v. Talbot, 836 F. Supp. 19 (D. Me. 1993) (guardian as litem not a state actor when she is responsible for exercising independent judgment about the ward's rights, just like Rose is). Furthermore, private parties who involuntarily commit and treat a psychiatric patient are not state agents, despite state authorization and supervision of this activity and provision for judicial review. (Spencer v. Lee (1989) 864 F.2d 1376 (7 superth Cir.) (treatment of the mentally disabled, as of the sick and infirm generally, is not a governmental function).) The State does not "encourage" Rose to refuse treatment for Robert any more than it "encourages" commitment for mental illness. (Id. at 1379.) (See also 64 Op. Calif. Atty. Gen. 712 (1981) (parental decision to confine minor in a private mental health facility not state action despite state authorization and oversight.)


This Court's decisions about state action mandate the same result. The leading case that specifies the standards for identifying state action is Kruger v. Wells Fargo Bank (1974) 11 Cal.3d 352. Kruger had a checking account and credit card agreement with the bank. The bank deducted a sum from the checking account and applied it to a credit card delinquency pursuant to a statute. Subsequently, some of Kruger's checks bounced. Kruger sued the bank and claimed, inter alia, that it unconstitutionally deprived her of the use of her property without due process of law. As the bank, just like Rose, is clearly not a state official or employee, the issue is whether a private party, acting pursuant to or in accordance with a state statute, thereby becomes a state actor. The Court identified the standards for determining whether a private party's actions can constitute state action as follows.

Those cases predicating state action upon the impact of a statute on private behavior fall generally into three categories. The first...consists of cases which adjudicated statutes that compelled private action. The second category encompasses those statutes which, while not compelling private action, endorse and encourage that action as state policy. The third group comprises the decisions in which the statutes create a private right of summary seizure. (Id. at 361; footnotes omitted)


*12 The first category does not apply to this case as the challenged statute, 2355, does not compel Rose to do anything; it does not force her to consent to or refuse medical treatment of Robert as the state sees fit. [FN6] It merely authorizes her to make such decisions (after all, making decisions is inescapable for a totally uncommunicative person like Robert) and establishes certain standards for assessing their legal acceptability if one is called into question.



FN6. For an example of state compulsion of private behavior, see Robinson v. Florida (1964) 378 U.S. 153 (segregation of private facilities required by state law).



The second category is equally inapplicable. Kruger offers Reitman v. Mulkey (1967) 387 U.S. 369 as the leading example of the application of the ""encouragement" theory. Reitman struck down a California initiative that both replaced all laws banning racial discrimination in housing and also stripped the state of all authority to affect or eliminate the "right" of private sellers and renters to discriminate on racial grounds.

The essence of the Reitman decision is that an action of the state which is not merely permissive of discrimination but a significant encouragement of it, and a consequent involvement of the state in it, does constitute state action." (11 Cal.3d at 361)

California in no way "significantly encourages" conservators like Rose to accept or reject medical treatment of conservatees, nor does it involve the state in such decision making in any direct way. Kruger's third category obviously does not apply either. Therefore, under California law, conservators are not state agents whose conduct is subject to Constitutional limits.


2. As Conservators' Actions Are Not State Action and Not Subject to Constitutional Requirements, the Proper Evidentiary Standard of Proof Under 2355 is that Set by the Legislature: the Preponderance of the Evidence.


The conclusion that a conservator's actions are not state action invalidates the Court of Appeal's holding that due process requires that a conservator show by clear and convincing evidence that she has satisfied the *13 2355 requirements. (Conservatorship of Wendland (2000) 78 Cal.App.4th 517, 549- 555.) Curiously, the Court of Appeal recognized the constitutional significance of a conservator or guardian not being a state agent in passing (Id. at 548), but did analyze or justify its assumption that a conservator's acts constitute state action. All authority shows that the Court of Appeal made this assumption in error.


This same conclusion likewise invalidates Florence's constitutionally based claims about the evidentiary standard of proof scattered throughout her brief. Apparently Florence is arguing that: (1) Rose must prove by clear and convincing evidence that it would be in Robert's best interests to refuse medically provided nutrition and hydration (RB at 2, 25); (2) Rose must prove by clear and convincing evidence that Robert himself refused the treatment in question prior to losing capacity (RB at 37-38: discussion of this rule in Martin and reference to the "constitutional requirements...underlying Martin); [FN7] and (3) Rose must prove by the clear and convincing evidence or beyond a reasonable doubt standard that her medical decisions meet the 2355 standards [FN8] (RB at 12, *14 27-30). Because conservators are not state agents, no constitutional basis exists for judicial imposition of these standards of proof on a private actor.



FN7. If this argument prevailed, 2355 would in effect be repealed because its central policy judgment is that conservators should be making medical decisions, guided by the patient's instructions, wishes, or best interests (as applicable), not conservatees using the mythic crystal ball to "inform" them what their medical future might hold and make hypothetical refusals of treatment.



FN8. Florence's and the Court of Appeal's assumption of state action, as well as their insistence that this applies only or primarily because the conservator's decision may or will result in the conservatee's natural death, would also apply to attorneys-in-fact appointed pursuant to a durable power of attorney for health care (Probate 4670-4743) and possibly even family members who make such decisions pursuant to the authority of Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1021. If Florence and the Court of Appeal are right, then nearly every decision to forgo life-sustaining treatment made in the state (and there are many every day) would be subject to constitutional requirements regarding procedural and substantive due process. Private action in this realm would all but disappear, and the courts would be busy.



Consequently, determining the standard of proof in these matters is up to the Legislature, and it has spoken on this issue. First, 2355's plain language totally rejects argument #2 above: the Legislature has reasonably determined that it is better for conservators to make these decisions contemporaneously than for citizens to make hypothetical medical decisions years (maybe decades) in advance with little but hope and guesswork to guide them.


Second, several reasons exist for recognizing that the Legislature has also rejected Florence's arguments # 1 and 3. One, Evidence Code 115 provides that the standard of proof in civil matters is preponderance of the evidence, unless otherwise provided by law--either by the Constitution as interpreted by the judiciary or by the constitutionally permissible choice of the Legislature. [FN9] As 2355 does not contain a provision for a higher standard of proof and the Constitution does not govern private action, 115 controls. Two, the Legislature is surely aware not only of its ability to impose a higher standard when it believe such appropriate (see 1801(e) and 2356.6 as enacted in 1996), but also of Conservatorship of Drabick's (1988) 200 Cal.App.3d 185, 211-12, cert. denied, 488 U.S. 958 refusal to impose a higher standard. Yet it made no such change in 1990, when it reenacted the entire Probate Code, or in 1996 when it added the higher standard to 1801(e) and 2356.6. Three, the California Law Revision Commission, the sponsor of the bill (Stats. 1999, ch. 658) that amended 2355 effective July 1,2000, entered an Official Comment to this effect.



FN9. This is what the Legislature did in the wake of In re Valerie N., infra.



This section does not specify any special evidentiary standard for the determination of the conservatee's wishes or best interest. *15 Consequently, the general rule applies: the standard is by the preponderance of the evidence. Proof is not required by clear and convincing evidence.

California Law Revision Commission reports and materials are authoritative sources for guidance in statutory interpretation. (Brian W. v. Superior Court (1978) 20 Cal.3d 618 622; see also Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 980.)


In summary, Florence assumes, completely without argument or authority, that Rose is a state agent whose actions are governed by constitutional requirements. All available authority indicates that conservators are not state agents and therefore that the Constitution does not control her behavior. [FN10] Therefore, Florence's arguments (1) that Rose's activity as medical decision maker for Robert violates his constitutional rights, and (2) that a higher standard of evidentiary proof than the preponderance is constitutionally mandated must be rejected.



FN10. Kruger also rejected the claim that the bank was a state agent because "the banking industry is so highly regulated, and performs so important a function, that the act of a bank should be treated as the act of the state itself." (Id. at 360, 364-66.) Therefore, this line of argumentation isn't open to Florence either.



However, Florence has also claimed that 2355 itself violates Robert's constitutional rights. As the operation of this statute, like the Missouri court ruling reviewed in Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, is state action, we address this claim on the merits next.


D. Probate Code 2355 Does Not Violate Robert's Right to Due Process under the Federal and California Constitutions.


1. The content of 2355 as amended and effective today.


By letter of June 23, 2000, this Court directed counsel to address the following two questions:

Does Probate Code section 2355 (as amended by Stats. 1999, ch. 658, effective July 1, 2000) authorize the conservator to withdraw artificial *16 nutrition and hydration from the conservatee under the facts of this case? If so, does section 2355 as applied violate any constitutional right of the conservatee?

Rose will discuss 2355 more generally as well as address these questions in this and subsequent portions of this brief. We note with great interest that Florence declined to discuss in any manner either of these questions. In any event, it is vital to discuss 2355 in its present form and not its previous incarnations.


First, any interpretation of 2355 (or any statute), whether from a constitutional or other point of view, must start with its plain language. If the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary. The conservator shall make health care decisions for the conservatee in accordancewith the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator. Otherwise, the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest. In determining the conservatee's best interest, the conservator shall consider the conservatee's personal values to the extent known to the conservator.

The statute grants conservators the "exclusive authority" to make "health care decisions" on behalf of conservatees. 2355 specifically gives "health care" and "health care decision" the meaning they have in 4615 [FN11] and 4617 [FN12] of the Probate Code. Together these statutes not only make clear that the conservator *17 is authorized to accept or reject any proposed medical treatment, but also expressly authorized to "withhold... artificial nutrition and hydration," [FN13] the precise--and only--treatment decision that the Superior Court enjoined Mrs. Wendland from making. In answer then to the Court's first question, 2355 undeniably authorizes Rose to withdraw Robert's medically provided nutrition and hydration.



FN11. "'Health care' means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition."



FN12. "'Health care decision' means a decision made by a patient or the patient's agent, conservator, or surrogate, regarding the patient's health care, including the following...(c) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation."



FN13. In this brief, Mrs. Wendland will use the more descriptively accurate term "medically provided nutrition and hydration" in place of the statutory phrase "artificial nutrition and hydration," though both refer to the same set of medical procedures, namely, nasogastric tubes, gastrostomy tubes, jejunostomy tubes, and hyperalimentation. The statutory phrase is imprecise in that it seems to state that the nutrition and hydration patients receive is "artificial" when in reality it is the means by which calories and fluids are provided to patients (tubes manually or surgically implanted in the stomach or heart) which are "artificial."



The statute goes on to direct conservators to make health care decisions "in accordance with the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator." The term "individual health care instructions" is defined in 4623 and, although 2355 does not incorporate this particular section of the Health Decisions Act by reference (unlike its sister sections 4615 and 4617), this definition is nevertheless sensible and useful: "'Individual health care instruction'... means a patient's written or oral direction concerning a health care decision for the patient." Thus, this language means that if the patient has given (more or less) specific directions--whether in a formal written manner or the less formal oral manner-- about what medical treatment he does or does not want, the conservator should follow them as they apply to the clinical situation at hand.


If this type of quite specific information about what medical treatment and health outcomes the person would or would not want is unavailable to the conservator, then 2355 directs her to make medical decisions in accordance with "other wishes" of the conservatee known to the conservator. This term *18 must (to be meaningful, and all words in a statute should be so interpreted) refer to less specific wishes, values, and concerns that the patient had which are reasonably pertinent to the medical treatment decisions at hand. The statute is directing--and authorizing--the conservator to make a medical decision on behalf of the patient that is as informed and structured as it can be by the patient's own individual preferences, likes, dislikes, values, plans, and hopes.


Finally,if the conservator either does not or cannot know anything pertinent about the patient's own specific directions or generally applicable wishes about medical treatment, the statute directs her to "make the decision in accordance with the conservator's determination of the conservatee's best interest." Even when using this less subjective standard [FN14] to figure out the patient's best interests, the conservator is still required to "consider the conservatee's personal values to the extent known to the conservator."



FN14. "Subjective" here means specific to the patient's individual personal (indeed, idiosyncratic) values, wishes, fears, and preferences.



2. Legislative Purpose and State Interests


The Legislature's purposes behind its enactment of 2355 are not hard to grasp. The Constitution, [FN15] statutory [FN16] and case law [FN17] gives California citizens a right to reject (or accept) medical treatment for their own reasons and in light of their personal values, wishes, fears, preferences, and life plans. 2355 is the Legislature's mechanism for preserving this right for all incompetent adults by authorizing a judicially appointed conservator to exercise this right individually on their behalf.



FN15. Thor v. Superior Court (1993) 5 Cal.4th 725.



FN16. The Health Care Decisions Act, 4600-4805.



FN17. Barber, supra; Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127; Bartling v. Superior Court (1984) 163 Cal.App.3d 186.



*19 2355 is the Legislature's embodiment of respect for the individual person and the values, wishes, and plans that constitute his identity. This statute, then, is just a different manifestation of the very same respect for the individual that formed the foundation of this Court's ruling in Thor v. Superior Court (1993) 5 Cal.4th 725 pertaining to competent adults. Because we should respect a person as an individual with his own interests, his own embodied life, and his own point of view on the relative risks and benefits of medical treatment as well as on the desirability of the practical outcomes of such treatment, we recognize that each individual possesses "the possession of his own person, free from all restraint or interference of others," the "right to be let alone," the right "in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment." (Id. at 731). In our state, the right to refuse medical treatment is "basic and fundamental" and protected by the Constitution from unjustified state interference.


While incompetent adults [FN18] cannot exercise their own right to refuse treatment and while it is inaccurate and indeed illogical to claim that a conservator is exercising the patient's autonomy or self-determination, it remains nonetheless true that the incompetent deserve individualized decision making to be made on their behalf by another. The Drabick court grasped this fundamental point about the moral value of individual human subjects and eloquently elucidated it.



FN18. The analysis offered in this brief is intended to apply only to formerly competent adults, like Robert, who had their own values, plans, and preferences before becoming incompetent. Different, though surely related, concepts would be needed to explicate the meaning of the 2355 standards if the conservatee were a never competent adult. As this case does not present such a factual situation, the Court need not address these other concepts.



In William Drabick's case, we must frankly acknowledge that his non-cognitive state prevents him from choosing anything. Thus, to claim that his "right to choose" survives incompetenceis a legal fiction at best. *20 While William's condition may prevent conscious choice, however, it does not by any means follow that he has no protected, fundamental interest in the medical treatment decisions that affect him. (Id. at 208.) (footnote omitted)

Mr. Wendland is in a similar circumstance: he cannot decide anything for himself, he cannot exercise any personal "right to choose," yet he retains a constitutionally protected, statutorily recognized, [FN19] fundamental interest in the outcome of the medical decision made on his behalf by his conservator.



FN19. The Legislature has decreed that persons with developmental disabilities "have the same legal rights and responsibilities guaranteed all other individuals by the United States Constitution and laws and the Constitution and laws of the State of California." (Welfare & Institutions Code 4502) (emphasis added) While Mr. Wendland was not disabled prior to his eighteenth birthday and therefore is not technically "developmentally disabled," the Legislature's main point must still apply to him: as an individual worthy of our respect and possessing dignity, a disabled person such as Mr. Wendland has the same fundamental legal rights as the mentally competent.



Mr. Wendland and each disabled person who is precluded from making his own decision about his medical fate deserves someone "to speak for him [and decide] that [use of medical technology] is the best or wisest course." (Id.) This must be so because all persons deserve the full moral respect due to individual human beings. No person should be treated like an object of medical technology. No person should receive treatment simply because it is possible and in spite of its possible lack of benefit, its risks and side-effects for that person. No incompetent person should receive treatment simply because some stranger embraces an ideology or a cause that considers treatment mandatory under all circumstances because the preservation of biological life is mandatory in all cases.


The Drabick court [FN20] deftly understood the moral and legal foundation of *21 the previous version of 2355; its reasoning applies with even greater force and effect to the present version.



FN20. As right Drabick is on many key issues in this case, it was flat-out wrong to limit the applicability of 2355, of its statutory analysis, and of its constitutional insights to permanently unconscious conservatees as these limitations ignore the plain language of the statute as well as logic.



Under California law..., human beings are not the passive subjects of medical technology. The line of decisions beginning with Cobbs v. Grant and continuing with Barber, Bartling, and Bouvia compel this conclusion [FN21]. These cases recognize that medical care decisions must be guided by the individual patient's interests and values. Allowing persons to determine their own medical treatment is an important way in which society respects persons as individuals. Moreover, the respect due to persons as individuals does not diminish simply because they have become incapable of participating in treatment decisions. While William's coma precludes his participation, it is still possible for others to make a decision that reflects his interests more closely than would a purely technological decision to do whatever is possible. Lacking the ability to decide, he has a right to a decision that takes his interests into account. (Id.) (emphasis added)



FN21. Thor and Morrison are plainly in this same tradition as well.



In sum, the people of this state, through their democratically elected representatives, have created 2355 as a means of maintaining the dignity and respect owed to each person who no longer able to decide his own medical fate by requiring that his conservator, his surrogate, [FN22] make a good faith, medically informed decision that is consistent with a reasonable conception of his best interests. 2355 preserves and protects the incompetent individual's rights, interests, and dignity.



FN22. "Surrogate" comes from the Latin "sur" and "rogare" meaning "to ask near." When we cannot ask the man himself whether he wants to be maintained by medical treatment which involves intrusion into and restraint of his body, we should ask someone personally near to him to make that decision on his behalf that takes his individual values, interests, and circumstances into account.



Some might object that only the person himself can make the fateful *22 decision to refuse treatment and allow himself to die naturally, that a surrogate should not be permitted to make such a decision. For example, this is the rule that the Missouri Supreme Court adopted and that the U.S. Supreme Court reviewed in Cruzan. "'[N]o person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes or the clear and convincing, inherently reliable evidence [of her own prior refusal of treatment] absent here."D' (497 U.S. at 269.)


But our Legislature has made a different, though constitutionally proper (as explained below) choice: the people have decided that surrogate decision making by a judicially appointed conservator that satisfies certain standards is better than tethering a person to medical treatment he may not have wanted, or that may not serve his best interests, or that may cause him physical pain or moral indignity, for years, even decades. The Legislature recognized that "[f] ew individuals provide explicit oral or written instructions regarding their intent to refuse medical treatment should they become incompetent" (Id. at 289, O'Connor, J., concurring) and choose to create another option via 2355.


Another objection to the Legislature's choice of authorizing conservators to make medical decisions for the incompetent--and one repeatedly voiced by Florence--is that it fails to protect the conservatee's "right to life" and the state's interest in preserving life. But the state does not have an "interest "" in preserving the life of every human being simplicter. The Drabick court rightly grasped this point as well. [T]o speak of the state's interest in preserving life is really to miss the point. To put it more precisely, the state has an interest in protecting William's right to have appropriate medical treatment decisions made on his behalf. The problem is not to preserve life under all circumstances but to make the right decisions. A conclusive presumption in favor of continuing treatment impermissibly burdens a person's right to make the other choice. (200 Cal.App.3d at 209.)

The state does have a general interest in the preservation of human life, but the *23 fundamental value of individual choice and dignity must be evaluated along with this interest. "[T]he state has not embraced an unqualified or undifferentiated policy of preserving life at the expense of personal autonomy." (Thor, 5 Cal.4th at 740.) In other words, decisions to forgo life-sustaining medical treatment simultaneously implicate two fundamental rights and interests: the patient's right to life/the state's interest in preserving life AND the competent patient's right to choose his own medical fate/the incompetent patient's right and interest to have appropriate medical decisions made on his behalf by another.


2355 acknowledges both of these rights and interests and leaves their resolution to a judicially appointed conservator. It puts this decision, this balancing of important personal rights and interests, in the hands of a private agent, not the state. This statute gives the incompetent a way to have their rights exercised on their behalf that would otherwise be lost. The entirety of this analysis should be construed as grounding a compelling state interest in having medical decisions made on behalf of the incompetent by a person who faithfully honors his individual, personal instructions, wishes, values, and best interests.


3. 2355 Does Not Violate Robert's Right to Substantive Due Process.


Although her arguments are difficult to decipher, apparently Florence is claiming that Robert's right to substantive due process is violated by 2355 in two ways: (1) the statute's standards governing medical decision making by conservators constitute so low a set of substantive safeguards that the rights of conservatees to life and liberty are unconstitutionally jeopardized; and (2) the term "medical advice" in the statute is unconstitutionally vague. With respect to the first claim, Florence specifically criticizes 2355 for unconstitutionally (a) ignoring or subordinating Robert's best interests by merely requiring a conservator to show that her medical decisions were made in good faith, not that they comport with the conservatee's "actual best interests," and (b) *24 depriving the conservatee of his right to life.


I. Cruzan and Due Process


Florence cites Cruzan in her effort to advance her due process challenge, though in actuality it offers her no support whatsoever. Nevertheless, as it is the only Supreme Court case that discusses the so-called "right to die" and the constitutionality of state imposed standards for surrogate medical decision making for the incompetent, it deserves our attention.


In Cruzan, the parents and judicially appointed guardians of their permanently unconscious daughter wanted to discontinue her medically provided nutrition and hydration and allow her to die naturally as a result of her injuries. The Missouri Supreme Court denied them that authority. The parents claimed that Nancy's due process right [FN23] to refuse treatment was impermissibly infringed by the standards for surrogate medical decision making imposed by that court when it



FN23. The parents also claimed, unsuccessfully, that they, as close family members, had a constitutional right to have their judgment about medical treatment honored by the state, even in the absence of substantial proof that their views reflected the personal views of the patient. (497 U.S. at 285-86.) Rose asserts no such right in this litigation and his no need to.



rejected the argument that Cruzan's parents were entitled to order the termination of her medical treatment, concluding that 'no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes or the clear and convincing, inherently reliable evidence [of her own refusal of treatment] absent here."D' (497 U.S. at 268-69.)

In other words, by requiring that the patient herself make the decision to refuse treatment in advance of becoming incompetent and denying that authority to her parents/guardians, they claimed that Missouri violated Nancy's due process liberty interest in refusing medical treatment by setting too high a standard for medical decision making on behalf of incompetents. The High Court noted *25 that "the question is simply and starkly whether the United States Constitution prohibits Missouri from choosing the rule of decision which it did." (Id. at 277.)


Florence's due process attack on 2355 is the converse of the one leveled by the parents of Nancy Cruzan and rejected by the Supreme Court: she alleges that our statute sets too low a standard for medical decision making on behalf of incompetents. The Supreme Court's decision in Cruzan rejects both challenges. The sole question before the Court was whether the Missouri Supreme Court's requirement that "evidence of the incompetent's wishes as to the withdrawal of [[life-sustaining medical] treatment be proved by clear and convincing evidence" was permitted by the U.S. Constitution. (Id. at 280.) The Court held that "a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state." (Id. at 284; emphasis added.) In other words, a State may require clear and convincing evidence of an incompetent's prior wishes before a surrogate (such as a guardian or conservator) may direct discontinuation of medical treatment of that person, but the State is not constitutionally compelled to do so. [FN24]



FN24. In Addington v. Texas (1979) 441 U.S. 418 and Stantosky v. Kramer (1982) 455 U.S. 745, the High Court imposed a clear and convincing evidence standard as a constitutional minimum that applied to all similar state action, something it obviously refused to do in Cruzan.



The meaning of the Court's holding is clear and indisputable for several reasons. First, nowhere does Chief Justice Rehnquist's majority opinion state that this evidentiary standard is required by the Constitution for medical decisions made on behalf of incompetents. Second, in its survey of case law relevant to the constitutional issue before it, the majority opinion cites the holding of Drabick: "the court held that a state probate statute [ 2355] authorized the patient's conservator to order the withdrawal of life-sustaining *26 treatment when such a decision was made in good faith based on medical advice and the conservatee's best interests." (497 U.S. at 275.) Being familiar with this case, the High Court certainly must have been aware that Drabick expressly rejected use of the clear and convincing evidence standard.


Finally, and most importantly, Justice O'Connor's concurring opinion in Cruzan [FN25] confirms both the limited constitutional scope of the majority's decision and Rose's argument that it does not invalidate California's approach to the issue as embodied in 2355.



FN25. Justice O'Connor provided the fifth vote to make a majority for the Chief Justice's opinion. Four dissenting judges would have used the Constitution to strike down the clear and convincing evidence standard as mandated by the Missouri Supreme Court. There is no need to reach the question of whether the California Constitution would mandate a different result.



Today's decision, holding only that the Constitution permits a State to require clear and convincing evidence of Nancy Cruzan's desire to have artificial hydration and nutrition withdrawn,...does [not] prevent States from developing other approaches for protecting an incompetent individual's liberty interest in refusing medical treatment. As is evident from the Court's survey of state court decisions..., no national consensus has yet emerged on the best solution for this difficult and sensitive problem. Today we decide only that one State's practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safe-guarding incompetents' liberty interests is entrusted to the "laboratory" of the States.... (497 U.S. at 292; emphasis added; citations omitted.)

Cruzan's holding that a one state's standards for medical decision making for incompetents (which is admittedly quite different from California's) is constitutionally permissible does not--indeed cannot--mean that such a standard is constitutionally required. [FN26] The Federal Constitution permits California to *27 use the standards embodied in 2355 as an "approach for protecting an incompetent individual's liberty interest in refusing medical treatment." Nothing in Cruzan commands a different result.



FN26. The Court rejected such reasoning explicitly. "[P]etitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way." (Id. at 286; emphasis added.) By parity of reasoning, Florence cannot legitimately argue that a decision which allowed a State to rely on the patient's own decision must be turned into a constitutional requirement that the State recognize only that form of decisionmaking.



II. The Best Interests Objection


A more specific analysis of Florence's due process challenge is in order now. Specifically, Florence alleges that 2355 unconstitutionally ignores or subordinates Robert's best interests by merely requiring a conservator to show merely that her medical decisions were made in good faith, not that they comport with the conservatee's "actual best interests." (RB at 19, 21, 25, 28.) This allegation is groundless for several reasons. First, it should be clear from the exposition of the recently amended 2355 above that this statute expressly requires the conservator to place the individual conservatee at the center of its her attention as she is required to make medical decisions "in accordance with the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator." If this fails, she is to "make the decision in accordance with the conservator's determination of the conservatee's best interest," and even when doing this, she "shall consider the conservatee's personal values to the extent known to the conservator."


The challenged statute does direct the conservator to focus on the individual conservatee for whom she is responsible and on his rights and interests. Florence's assault on this law is really premised on the unarticulated assumption that a conservatee's "actual best interests" mandate that he receive treatment and be kept biologically alive. But this assumption cannot stand.

In right-to-die cases,...the courts have generally concluded that medical *28 treatment does not always advance a person's interests.... [T]he patient's best interest is implicitly determined by reference to his or her own standards rather than external standards. A parallel approach for incompetent patients best respects their dignity: "To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality." (Meisel, The Right to Die, 7.13, p. 400-01, citing Super. Of Bel. St. Sch. v. Saikewicz (1977) 370 N.E.2d 417, 428.)

The Legislature has decided that the better policy is for a conservator to make an informed, good faith decision about medical treatment, in accordance with the standards in 2355, rather than have conservatees always receive life- sustaining medical treatment or only not receive it when they are terminally ill or permanently unconscious. [FN27]



FN27. Florence's assertions that 2355 is unconstitutional because its reach is not limited to the terminally ill or to permanently unconscious is frivolous. (RB at 42-46.) The plain language of the statute embraces all those who "ha[ve] been adjudicated to lack the capacity to make health care decisions," and nothing in the Constitution requires the Legislature to choose as Florence wishes it would. Florence is worried that the non- terminally ill or non-unconscious patients are more subject to abuse by conservators than other incompetents. This is a distinction that makes no sense. If anything, conscious patients have a stronger interest in being rid of nonbeneficial, intrusive, and possibly painful treatment. Michelle Mello, Death, Life, and Uncertainty: Allocating the Risk of Error in the Decision to Terminate Life Support, 109 Yale L. J. 635-642 (1999).



Rose acknowledges that any decision by a conservator to accept or reject a medical treatment on behalf of a conservatee must be consistent with the latter's best interests. A fair interpretation of 2355 is consistent with this conclusion and rescues it from any claim of unconstitutionality like that advanced by Florence. Yet this is a conclusion that needs explanation. However, as a threshold matter, Rose rejects the enthymeme in Florence's argument that Robert's best interests can only be served by keeping him *29 biologically alive in his present condition because it begs the true question.


The term "best interests" as applied to an incompetent individual does not, indeed logically cannot, have a univocal or narrow meaning. This term refers to an all-things-considered judgment about what course of action would: make primary the person's overall well-being (Johnson v. Calvert (1993) 5 Cal.4th 84, 119 (Kennard, J., dissenting); protect the individual's mental and physical health (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 378-381 (Kennard, J., concurring); and advance the individual's rights and interests (Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 718).


The best specific articulation of the legal content that should be given to the notion of an incompetent patient's "best interests" can be found in Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1021.

[T]he surrogate ought to be guided in his decisions by the patient's best interests. Under this standard, such factors as the relief of suffering, the preservation or restoration of functioning[,] and the quality as well as the extent of life sustained may be considered. Finally, since most people are concerned about the well-being of their loved ones, the surrogate may take into account the impact of the decision on those people closest to the patient. (citation omitted) It is clearly not in a person's best interests to be in pain, suffering, or having other negative or unpleasant experiences, unless such must be undergone in order to achieve a state of health, happiness, or positive affect. States of affairs that bring satisfaction to the individual, that create relationships with others, that include communication with others are all consistent with a person's best interests. Put differently, the individual's quality of life--his experience of love, connection, satisfaction, happiness, meaning, and communication--is part and parcel of his best interests. Finally, a person's best interests surely include preservation and enhancement of his biological life itself and the extent of time this life can be sustained.


The term "best interests" must be interpreted by someone under the facts *30 and circumstances of each individual case as it occurs in the lived world. In 2355, our Legislature has given this interpretative authority exclusively to the judicially appointed conservator of an incompetent adult, [FN28] but not absolutely. Any decision by a conservator on behalf of any conservatee must be based on a reasonable conception of the conservatee's best interests. The concept of "best interests" should not be understood as infinitely pliable or totally discretionary and therefore unreviewable by a court, even though it is a term often amenable to more than one fair and reasonable interpretation in any given situation. These general principles are required not only by statute [FN29] , but also by the well-settled rule of constitutional adjudication in which the reviewing court "always presum[es] the constitutional validity of legislative acts and resolv[es] doubts in favor of the statute. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252.)" (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 939.)



FN28. "'Exclusive' means sole, excluding others from participation, vested in one person alone." (Dept. of Soc. Serv. v. Sup. Ct. (1997) 58 Cal.App.4th 721, 733.) Drabick correctly held that 2355 "gives the conservator the exclusive authority to exercise the conservatee's rights, and it is the conservator who must make the final treatment decision.'' (200 Cal.App.3d at 211; emphasis added.)



FN29. Probate Code 2101 specifies that "the relationship...of conservator and conservatee is a fiduciary relationship that is governed by the law of trusts....'' Conservators are always under a fiduciary obligation to act in the best interests of the conservatee. (In re Sophia B. (1988) 203 Cal.App.3d 1436, 1440 (Woodworth, J., concurring.)



California statutes other than 2355 grant certain entities exclusive legal decision-making authority as well, and their decisions have been held to be reviewable. For example, in L.A. County. Dept. of Children and Family Services v. Superior Court (1998) 62 Cal.App.4th 1, the County had statutory ""exclusive" authority over the custody, control and supervision of a minor *31 referred for adoption, [FN30] yet a trial court overruled the County's decision about placement. The Court of Appeal reversed.



FN30. Welfare & Institutions Code 366.26(j); Family Code 8704.



Under the statutory scheme, [the County's] not unfettered. The juvenile court retains jurisdiction over the minor to ensure the adoption is completed as expeditiously as possible and to determine the "appropriateness of the placement....'' This does not mean the court may substitute its judgment for that of [the County] because the Legislature has given the agency exclusive custody and control of the minor and the discretion to make placement decisions. Rather the court is limited to reviewing whether [the County] abused its discretion.... Absent a showing that [the County's] placement decision is patently absurd or unquestionably not in the minor's best interests, the court may not interfere and disapprove of the placement. (62 Cal.App.4th at 10; citations omitted.) This case correctly affirms not only that the judiciary can review a decision that the Legislature has given "exclusively" to someone else, but also that such a decision cannot be arbitrary, capricious, or "unquestionably" inconsistent with any reasonable determination of the incompetent person's best interests.


Consequently, when the term "best interests" as it governs a conservator's actions under 2355 is understood properly and interpreted in a manner that resolves possible constitutional doubts, Florence's assertion that it violates Robert's constitutional rights--whether to privacy, due process, or equal protection, shows itself to be unpersuasive. To the contrary, 2355 protects and preserves Robert's rights to privacy and due process through the informed judgment of a surrogate.


III. The Right to Life Objection


The second argument of Florence's within her allegation that 2355 violates due process by setting too low a standard for medical decision by conservators is that this statute improperly deprives Robert, and all similarly situated conservatees, of the constitutionally guaranteed right to life. More *32 specifically, she argues that a conservatee's constitutionally guaranteed right to life must take at least presumptive precedence in any legal mechanism that permits conservators (and presumably relatives who have not been appointed conservators as well) to refuse medical treatment that would (or could) keep the conservatee biologically alive. (RB at 11, 16) They even go so far as to assert that the state is required by the Constitution to require those surrogates who would refuse life-sustaining treatment to prove to a court beyond a reasonable doubt that such a decision is in the conservatee's best interests. [FN31] (RB at 29-30.)



FN31. Florence cites no judicial authority to support her right to life argument, and for good reason. It by and large does not exist, almost surely because in its bare form it is unhelpful, even misleading, in resolving refusal of treatment cases.



This line of reasoning has several fatal flaws. One, 2355 itself does not deprive conservatees of life in any meaningful manner; it structures the appointment of conservators who make medical decisions on behalf of incompetent adults and sets certain fair and reasonable standards for such decision making. Two, the conservators who sometimes make decisions to refuse life-sustaining medical treatment are not state agents. Consequently, as argued above, their conduct is not regulated by the Constitution.


Third, the decision by a surrogate to refuse life-sustaining medical treatment is not even a "deprivation of life" within the meaning of the Constitution in the first place. Such a decision is not an intentional taking of life in the first place; instead, it allows the patient's injury or disease to take its natural course. (Matter of Guardianship of L.W. (1992) 482 N.W.2d 60, 66 (Wis.).)

[W]hen a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology... See, e.g.,...Matter of Conroy [[(1985) 486 A.2d 1209, 1226] (when feeding tube is removed, death ""results...from [the patient's] underlying medical condition");...In re Colyer [(1983) 660 P.2d 738, 743] ("[D]eath which occurs after the removal of life sustaining systems is from natural causes").... (*33Vacco v. Quill (1997) 521 U.S. 793, 801.)

The distinction between letting a patient die of his disease and intentionally making that patient die (or assisting in suicide) is important, logical, rational, and well established (Id. at 800-801.)

This Court has also recognized...the distinction between letting a patient die and making that patient die. In Cruzan..., we concluded that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions," and we assumed the existence of such a right for purposes of that case.... [O]ur assumption of a right to refuse treatment was grounded...on well established, traditional rights to bodily integrity and freedom from unwanted touching, Cruzan, 497 U. S., at 278-279; id., at 287-288 (O'Connor, J., concurring). (Vacco, 521 U.S. at 807; citations omitted.)

The well established, traditional right to refuse treatment is essentially the same one that a conservator exercises when she refuses life-sustaining treatment. Rose's refusal of treatment will result in Robert's natural death from an underlying pathological condition that has devastated him.


Fourth, Florence's right to life argument assumes this right is absolute, or at least always primary, and accordingly utterly ignores the fact that incompetents simultaneously have basic constitutional rights to having their instructions and values about health care honored, to bodily integrity, and to respect for their individual well-being and dignity--rights which demand that some conscientious, responsible person make decisions on their behalf which take all of these rights into account and balance them with compassion, integrity, and good faith adherence to what's best for the individual patient. [FN32] It *34 is this need for the balancing of the incompetent's rights, balancing his interests, and for the exercise by a surrogate of personal judgment on his behalf that strongly counsels keeping the State out of the decision making role. Indeed, the reason for the Legislature's creation of conservatorship in the first place is to keep these decisions in private hands.



FN32. "The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain 'rights,' to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind." (Cruzan v. Director (1990) 497 U.S. 261, 309 (Brennan, J., dissenting, citing Thompson v. Oklahoma (1988) 487 U.S. 815, 825 n. 23 (emphasis in original).)



Finally, Florence's assumption about what the right to life basically means is distorted. The word "life" in "right to life," "interest in life," and ""sanctity of life" is ambiguous. The different meanings deserve sorting out.

[W]hen we speak of "life", we may be referring to living things, to things that are alive. To be alive is to be a functioning biological organism. Here the contrast is with things that are dead, or with things that are neither alive nor dead, such as rocks.... On the other hand, when we speak of "life", we may have in mind a very different sort of concept, one that belongs more to biography than to biology. Human beings are not only alive; they have lives as well.... If the concept of life is ambiguous in this way, then so is the concept of the sanctity of life. The doctrine of the sanctity of life can be understood as placing value on things that are alive. But it can also be understood as placing value on lives and on the interests that some creatures, including ourselves, have in virtue of the fact that they are the subjects of lives. Very different moral views will result, depending on which interpretation one chooses. (James Rachels, The End of Life, 24-25 (1986); italics in original.)

Florence's right to life argument (and others as well) uses "life" largely in the biological sense: Robert is biologically alive and is conscious. [FN33] This use of *35 "life" can be easily seen when she argues that



FN33. Florence emphasizes that he has consciousness and tries to mislead this Court into thinking he has more robust consciousness than Robert actually possesses because she realizes that the less Robert is in fact conscious, the more he is like a person in the permanent vegetative state who has no biographical life whatsoever--no past or future, no feeling, no emotion, no experience, no relationships, no awareness, no love. Termination of medically provided nutrition and hydration for the permanently unconscious is no longer legally controversial.



the exercise of the right to refuse life-sustaining treatment must be closely scrutinized and narrowly interpreted individual choosing to die by starvation and dehydration rejects life itself. (RB at 15; emphasis in original.)


But this is only part of the story of "life"for human beings, and not the most important part in the last analysis. The biographical sense of "life" refers to all those thoughts, hopes, projects, plans, activities, dreams, and relationships that enable each of us to have a life that is ours, that we cherish and look forward to keeping our own.


The Constitution protects this concept of human life as well because what it includes really makes us who we are as individuals; it is what matters most to nearly everyone about our life. The California Constitution captures this dimension of human life when it states "All people...have inalienable rights. Among these are enjoying and defending life,...and pursuing and obtaining safety, happiness, and privacy." (Art. 1, 1.) This is also why "quality of life" matters and why Barber and other courts have included it as a key component of the "best interests" of incompetent patients. Any reasonable conception of best interests, any honest decision about whether a medical treatment will benefit or harm someone must take the individual's biographical life into account as well as his biological life, and so should the constitutional decision of this Court.


IV. The Vagueness Objection


Florence's argument that 2355 fails to satisfy due process requirements because of the vagueness of one of its terms, "medical advice," is worthy of only brief response.

The challenged terms must be considered in the context of the statute's purpose.... If a reasonable and practical construction can be given to the language of a statute or its terms made reasonable certain by reference to *36 other definable sources, it will not be held void [for vagueness]. (People v. Hsu (2000) 2000 Daily Journal D.A.R. 8607, 8611; citations omitted.)

A reasonable and practical construction of the term "medical advice" in the context of this statute is hardly elusive. First, it means that the conservator's decision either for or against medical treatment of her conservatee should be informed by expert medical opinion. Conservatorship of Morrison (1988) 206 Cal.App.3d 304, 310 has rightly interpreted this term to require the conservator to seek and obtain medical advice in order "to obtain information enabling the conservator to formulate a judgment about what is in the patient's best interests." [FN34] In other words, the conservator must obtain medical information about the patient's diagnosis, degree of consciousness, level of human functioning and personal interaction, ability to experience pain and pleasure, the expected burdens and benefits of proposed medical treatment, and, of course, prognosis--what the future probably holds for this patient. Plainly, a conservator should be familiar with the medical facts before deciding about treatment.



FN34. Morrison also rightly ruled that the 2355's requirement of medical advice "cannot...reasonably be construed as demanding adherence to a physician's opinion on the ultimate decision" of providing, withholding, or withdrawing life-sustaining medical treatment: "Otherwise, the conservator's right to refuse medical treatment on behalf of the conservatee would be meaningless. If a patient has the right to reject a physician's recommendation, so must the patient's conservator under the reasoning of Drabick.'' (Id.) (emphasis added) "Whether the benefits of treatment outweigh its detriments is a decision that engages personal and medical values, including ideas about the quality of life." (Id. at 196) The Legislature has given these decisions about "personal and medical values" to conservators, not physicians, strangers, lawyers, or judges.



Second, conservators should obtain the medical expert's advice about the advisability of utilizing treatment under the circumstances of the particular case. Does the physician recommend this treatment or that one? Does he think further treatment is inadvisable as unlikely to medically benefit the patient? *37 Does the treatment hold some promise of benefit but also pose serious risks? Therefore, getting "medical advice" means obtaining expert medical opinion on the science of the case and on the art of using the science wisely.


There is nothing vague about any of this. The requirement that a conservator like Rose obtain medical advice is reasonable, sound, and obviously advances the Legislature's purpose of having conservators make informed and factually grounded decisions about medical treatment. Florence's concern (RB at 34) that a conservator might consult only with a "rogue" physician (or perhaps a witch doctor or psychic healer) and then decide to stop life-sustaining medical treatment is bizarre, purely hypothetical, and has no constitutional import. The presumption must be that a conservator will consult with a responsible medical expert and that the expert will provide the conservator with responsible advice about the medical facts and values of the treatment decision at hand. In this case, Rose did in fact obtain the advice of a plethora of qualified medical experts. [FN35]



FN35. She consulted with three local physicians about her husband's situation (two of whom directly attended her husband), Drs. Kass, Kobrin, and Belogorsky. Drs. Kass and Belogorsky agreed with her decision to discontinue his medically provided nutrition and hydration. Later she had the benefit of the medical advice of Dr. Ronald Cranford, a nationally prominent neurologist and bioethicist, as well as the expert medical rehabilitation specialist and neuropsychologist selected by her husband's court-appointed lawyer, respectively, Drs. Sundance and Bryant.



The requirement of 2355 that a conservator obtain medical advice is also a check on the exercise of her medical decision making authority. Assume a conservator decides to refuse a treatment with the knowledge that the attending physician had strongly recommended it as clearly medically indicated and greatly beneficial to the patient. An ethically conscientious physician would refuse to honor such a decision and call for further review of the dispute, perhaps by another physician, an institutional ethics committee, or the superior *38 court supervising the conservator. Thus the professional ethics of the conservatee's physician giving the medical advice serves as a check on abusive or clearly unreasonable decisions by a conservator. Furthermore, a conservator's good faith would surely be called into question (though not necessarily disproved) if she insisted on imposing or refusing a treatment when one or more physicians refused to honor her decision.


4. 2355 Does Not Violate Robert's Right to Procedural Due Process.


Florence's procedural due process challenge (RB at 11) is hard to identify and understand, but its obscurity really does not matter as any such challenge runs directly counter to fundamental constitutional principles. First, as argued supra, because conservators like Rose are not state agents, their activities are not subject to procedural due process requirements. Second, the state action at issue in this case, 2355, plainly satisfies due process requirements. A judicial declaration of incompetence must be proved by clear and convincing evidence ( 1801). A conservator can be appointed only by the superior court only after a hearing and notice to affected parties ( 1812, 1822), review by a court investigator ( 1826), and with possible opposition by interested parties ( 1829). Provision is made for appointment of legal counsel for the conservatee ( 1470-72). All of these procedures and the others that attend conservatorship are reasonable and fair to all of the private and State interests involved.


E. 2355 Does Not Violate Robert's Right to Equal Protection.


Florence's Byzantine equal protection challenge to 2355 (RB at 23-30) seems to boil down to two claims: (1) the statute does not adequately protect the best interests of conservatees while other Probate Code provisions governing incompetents do offer constitutionally adequate protection for the conservatees' best interests; and (2) In re Valerie N. (1982) 40 Cal.3d 143 and the statutory scheme for regulating the permanent surgical sterilization of the developmentally disabled ( 1950 et seq.) require, as a matter of constitutional *39 law, that a conservator's compliance with the 2355 standards be proved beyond a reasonable doubt (RB at 30) and counsel be appointed for the conservatee who will oppose any decision by a conservator to refuse life-sustaining treatment (RB at 28-29). As Rose has already extensively discussed the constitutional challenge related to the conservatee's best interests supra, she turns only to the second argument here.


First, Valerie N. does not hold that the Constitution requires conservators to prove beyond a reasonable doubt that certain justificatory criteria have been met before they can consent to the sterilization of their developmentally disabled conservatees. It held that the Constitution forbids the State from unconditionally barring the sterilization of the developmentally disabled because it deprived them of the choice not to procreate made by a surrogate, a choice that is protected by the Constitution.

We do not doubt that it is within the police power of the state to enact legislation designed to protect the liberties of its residents. The inquiry does not end there, however, since the means selected are not simply protective of a liberty interest, but restrict the exercise of other fundamental rights by or on behalf of the incompetent." (Id. at 164.)

This Court invited the Legislature "to establish criteria and procedural protections governing these applications [for sterilization]'' (Id. at 168) which it did with the enactment of 1950 et seq..


The Legislature chose to require the conservator to prove the criteria beyond a reasonable doubt and, as far as we know, this is a constitutionally permissible choice. But nothing in Valerie N., Conservatorship of Angela D. (1999) 70 Cal.App.4th 1410, or any other case even suggests, much less holds, that this standard is constitutionally required. Florence's arguments contains the same fallacy of constitutional reasoning mentioned in Cruzan, supra:

[Florence] would seek to turn a decision which allowed a State to [set a higher evidentiary standard of proof] into a constitutional requirement that the State [set that standard]. But constitutional law does not work that way. (497 U.S. at 286.)

*40 As Florence has neither made a showing nor provided any authority that the Constitution requires the use of the beyond a reasonable doubt standard or the use of counsel who has a mandated agenda, her challenge fails. The bare fact that the Legislature uses one set of procedures in one context does not mean that the Constitution requires it to use similar ones elsewhere, even if both involve the same identifiable class of persons.


Finally, it is worth noting that the Legislature is entitled to decide that different policy considerations are applicable to a conservator's sterilization decisions than to decisions about medical treatment. One that leaps immediately to mind is the long history of documented abuse of the sterilization of the mentally disabled. [FN36] The Legislature plainly has no such concern about the abuse of medical decision making authority of conservators that would lead it exercise its authority to impose stricter standards on the use of 2355 authority. Florence's opinion that this policy determination is "incredibly naive" and will lead to "a pattern of abuse [that will be] documented through conservatees' gravestones" (RB at 30) is rhetoric better addressed to the Legislature than to this Court. Her opinion about this policy is not only constitutionally irrelevant, but even lacks any factual support that she can cite.



FN36. "As the majority mentions, and the Chief Justice's dissent emphasizes, the history of sterilization of mentally incompetent persons is not one of which we should be proud." (Valerie N., 40 Cal.3d at 171; Lucas, J., concurring and dissenting.) "The majority opinion opens the door to abusive sterilization practices which will serve the convenience of conservators, parents, and service providers rather than incompetent conservatees. The ugly history of sterilization abuse against developmentally disabled persons in the name of seemingly enlightened social policies counsels a different choice." (Id. at 175, Bird, C.J., dissenting.)



F. 2355 constitutes a measured, reasonable, and constitutionally permissible legislative response to the practical necessity of medical *41 decision making for incompetent adults.


Florence asserts that there is "no precedent" for 2355 (RB at 35) and that it is a "highly unusual and unorthodox statute" (RB at 18), offers two out-of- state cases as espousing better policy than 2355, and finally argues that these are good reasons for this Court to strike it down as either as bad policy, unconstitutional, or both. The first assertion is just factually false, the second is irrelevant, and the conclusion nothing short of preposterous.


A quick and immediate refutation of the first assertion can be found in the Uniform Health-Care Decisions Act (the Act) which was approved by the National Conference of Commissioners on Uniform State Laws in 1993, subsequently approved by the American Bar Association, the ABA Commission on Legal Problems of the Elderly, and the American Association for Retired Persons, and later adopted by six states. [FN37] First, the Act expressly includes "directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care" in its definition of "health-care decisions" that can be made by guardians, just like 2355. ( 1(6).) Second, the Act requires guardians to comply with the ward's instructions about health care, like 2355. ( 6(a).) Third, 2355 tracks the Act's language about how a surrogate should decide.



FN37. Alabama ( 22-8A-1 et seq.), Delaware (Title 16, 2501 et seq.), Hawaii (Ch. 327E-1 et seq.), Maine (Title 18-A, 5-801 et seq.), Mississippi ( 41-41-201 et seq.), and New Mexico ( 24-7A-1 et seq.) are the six states adopting the Uniform Code according to the official website of the National Conference (



The Act requires an agent or surrogate authorized to make health-care decisions for an individual to make those decisions in accordance with the instructions and other wishes of the individual to the extent known. Otherwise, the agent or surrogate must make those decisions in accordance with the best interest of the individual but in light of the individual's personal values known to the agent or surrogate. (Prefatory *42 Note, p. 2)

Finally, the Act endorses our Legislature's policy of having relatives make such decisions and not courts [FN38] and observes that "a majority of states have statutes allowing family members, and in some cases close friends, to make health-care decisions for adult individuals who lack capacity." (Prefatory Note, p. 1)



FN38. "Courts have no particular expertise with respect to health-care decision making. Moreover, the delay attendant upon seeking court approval may undermine the effectiveness of the decision ultimately made, particularly but not only when the patient's condition is life-threatening and immediate decisions concerning treatment need to be made. Decisions should whenever possible be made by a patient, or the patient's guardian, agent, or surrogate in consultation with the patient's health-care providers without outside interference." (Comment 6.)



In sum, there is nothing radical, unprecedented, or ethically suspect about the basic structure of 2355. While not every state adopts an approach to medical decision making for incompetent adults similar to that of California, many do. [FN39] It is not likely that all these states have enacted obviously unconstitutional statutes.



FN39. See, e.g., Arizona Rev. Stat. 36-3203(C) (in the absence of a patient's health care directive or knowledge of the patient's values that would provide a sufficient basis for making a health care decision, "the surrogate shall decide based on the surrogate's good faith belief as to what is in the patient's best interest"); 36-3231(A) (guardian appointed by court to make health care decisions a "surrogate"); 36-3203(D) (court shall base a finding of absence of good faith on information known to the surrogate and "shall enter its finding only after it has made a determination of bad faith in written findings of fact based on clear and convincing evidence of improper motive").



Florence also urges this Court to adopt the policy embodied in decisions by two courts in other states, In re Martin and In the Matter of Edna M.F.. (RB at 36-42) As neither of these states had a statute like 2355 and neither of *43 these decisions considered the constitutionality of such a statute, whatever policy these courts adopted is irrelevant to this case. Moreover, no California court can ignore the plain language of an applicable California statute or refuse to enforce the policy that statute embodies because a foreign jurisdiction has a different way of handling the same subject.


In addition, it is more than noteworthy that in all four of the states [FN40] that have required required the patient to make a specific refusal of the treatment in question himself before losing mental capacity and required his family to prove that he made this decision by clear and convincing evidence, this policy choice was made by the judicial branch and not the legislative branch. These are all examples of inappropriate judicial activism as this kind of policy choice belongs to the legislature. "If specific procedural rules are to be adopted in this area in order to protect the public interest, they must necessarily come from that body most suited for the collection of data and the reaching of a consensus--the legislature." (Barber, 147 Cal.App.3d at 1018; emphasis added.)



FN40. Cruzan v. Harmon (Mo. 1989) 760 S.W.2d 408; In re Westchester Cty. Med. Ctr. (1988) 72 N.Y.2d 517, 531 N.E.2d 607; In re Martin; In the Matter of Edna M.F..



It worth recalling Justice Arabian's words from Johnson v. Calvert with respect to the legislative and judicial functions in this regard. He took many of them from the right to die jurisprudence and applied them to the new reproductive technologies. We suggest putting them back into their original context. His counsel is wise: 2355 ought to be left as is.

...I do not think it wise for this court to venture unnecessarily into terrain more appropriately cleared by the Legislature in the first instance. In this regard, the Florida Supreme Court made the following pertinent observations...: "Because the issue with all its ramifications is fraught with complexity and encompasses the interests of the law, both civil and criminal, medical ethics and social morality, it is not one which is *44 well-suited for resolution in an adversary judicial proceeding. It is the type [of] issue which is more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interests of all institutions and individuals be properly accommodated." (Satz v. Perlmutter (Fla. 1980) 379 So.2d 359, 360, affg. (Fla.Dist.Ct.App. 1978) 362 So.2d 160.) The New Jersey Supreme Court echoed similar cautionary tones in Matter of Conroy (1985) 98 N.J. 321...: ""As an elected body, the Legislature is better able than any other single institution to reflect the social values at stake. In addition, it has the resources and ability to synthesize vast quantities of data and opinions from a variety of fields and to formulate general guidelines that may be applicable to a broad range of situations." (Id., 486 A.2d at pp. 1220- 1221; accord, Matter of Guardianship of Hamlin (1984) 102 Wn.2d 810, 821- 822....) Clearly, this court should not avoid proper resolution of the issue before it. "[T]he law, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of." (In re Quinlan (1976) 70 N.J. 10, 44..., cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922....) Nevertheless, I would not move beyond the available legal mechanism into such socially and morally uncharted waters. (5 Cal.4th at 102; Arabian, J., concurring; parallel citations omitted.)


G. In Light of the Amendments to 2355 Effective July 1, 2000 and the Factual Findings of the Superior Court, This Court Should End This Litigation as a Matter of Law.


2355 as recently amended expressly gives Rose the legal authority to withdraw medically provided nutrition and hydration from Robert. The trial court's order denying her this authority is clearly in error. As this statute is manifestly constitutional on its face and as applied, the only remaining legal question about this appeal is whether Rose has satisfied the 2355 standards for medical decision making so that this litigation--and the vindication of Robert's rights--might be finally resolved. If this Court does not resolve this litigation, Florence--and the vitalist zealots who support her position--will *45 continue to pursue court proceedings as long as they can, because delay is victory to them. Delay keeps Robert biologically alive.


First, the trial court unequivocally and expressly found that Mrs. Wendland's decision to discontinue the use of her husband's feeding tube satisfies the standards established by 2355 as amended.

Evidence was presented which clearly and convincingly shows that the decision made by conservator in July of 1995 [not to reinsert conservatee's feeding tube] was done in good faith, based on medical advice and after consideration of conservatee's best interests, including his likely wishes, based on his previous statements. (Robert's and Rose's Joint Appendix on Appeal 623 (JA); emphasis added; square brackets in original)

The trial court also found that

Evidence clearly shows that Rose deeply loves Robert and has consistently sought only what she believes was best for him and her family. There can be no doubt that her actions were motivated by a desire to "do the right thing", to bring stability to the rest of the family and closure in a way Robert would approve of. (JA 624; emphasis added)

and that "this court entertains a strong suspicion that Robert would have desired to die under the circumstances....'' (Id.; emphasis added)


Robert might have left no "individual health care instructions" as the term is used in 2355, but he certainly had "other wishes" and "personal values." These factual findings by the trial court demonstrate that Rose took Robert's individual wishes and values into account and made a decision that honored them as required by the new statute. The trial court's findings also demonstrate that Rose satisfied the other 2355 standards: she made her decision "in good faith, based on medical advice" and "in accordance with the conservator's determination of the conservatee's best interest." The Court of Appeal correctly found that all of these findings were supported by substantial evidence (78 Cal .App. 4th 544, n. 33) and so they are binding on appeal.


Consequently, even assuming the Court of Appeal was right that Rose *46 bears the burden of producing evidence to support her decision (Id. at 555), she has met this burden, even with the trier of fact using a higher evidentiary standard (clear and convincing) than should apply. Remand is not necessary for the purpose of the trial court determining whether Rose has satisfied the requirements of 2355 as amended as this would be contrary to the interests of justice to Robert and his close family and a waste of judicial resources. Moreover, this Court has the express authority to determine these facts. (CCP 909.)


The Court of Appeal ruled that Florence has, in essence, an absolute "right to offer evidence in support of his defense or in rebuttal," to put on her case- in-chief. (Id. at 560-61, citing CCP 631.8.) But what is this "case-in- chief" in these particular circumstances? First, with respect to "medical advice," Florence has no case to make. Rose utilized medical advice, and that's the end of this matter. Even if Florence could produce the testimony of a physician (or a busload of physicians) who disagreed with the advice of the physicians Rose consulted, it would be totally irrelevant testimony.


Second, with respect to good faith and Robert's global best interests per 2101, Florence had a full and fair opportunity of convincing the trial court that Rose was not acting in good faith when she petitioned for removal of Rose as conservator and sought to have her and Rebekah Vinson replace Rose, a petition filed after the court ruled against Rose on her medical decision. (Appellants' Supplemental Joint Appendix at 052-073.) When the trial court denied the petition (JA at 625), he had to be finding that Rose was acting in good faith and in Robert's best interests for he could not allow her to remain as conservator if she was acting in bad faith or contrary to his best interests. On these issues Florence is barred from further litigation by collateral estoppel. (Bernard v. Bank of America (1942) 19 Cal.2d 807, 813.)


Third, with respect to any issue of fact decided by the trial court, Florence has waived any claim to offer additional evidence on these issues *47 because she failed to make an appropriate motion requesting reconsideration of the trial court's findings. California Rules of Court 232(d) states that "[a]ny party affected by the judgment may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment." (See CCP 634) The reference to ""any party" includes both the prevailing and losing party as either may be ""affected by the judgment" depending upon its content. Florence was affected by the trial court's statement because it contained findings that satisfied the controlling statute's requirements and vindicated Rose's legal position. [FN41] Florence had her opportunity to formally inform the trial court that she had relevant evidence on these three issues that it had not yet heard and that should change its findings, but she did not do so. Consequently, she has waived her right to do so now. [FN42]



FN41. The law is well-settled that failure to object in a timely manner under Rule 232(d) waives the right to do so later, with only legal errors manifest in the text of the statement excepted. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132.) The party who fails to object to the trial court's statement is bound by the waiver even if it previously filed proposed findings contrary to those actually issued by the court. (Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273, 291.)



FN42. Moreover, Florence cannot in good faith even try to make the argument that she did not understand the import of the trial court's findings on these issues because her counsel, in open court, frankly acknowledged how these findings devastated their case. "[T]o say that Rose Wendland acted in good faith based on medical care and consideration of his best interests is going pretty far and may, in fact, viscerate [sic: eviscerate] your entire announcement in...the order." (Reporter's Transcript 2528:3-7)



Finally, CCP 909 gives this Court authority to end this litigation now. Using a "liberal construction" of this statute, this Court can make the necessary ""factual determinations...based on the evidence adduced before the trial court" *48 and on the updated medical evidence Robert's attorney has filed with his brief. If the "interests of justice" and "finally dispos[ing] of [a cause] by a single appeal" call for a reviewing Court to settle any litigation, it has to be this case because an end to this litigation will end Robert's suffering and vindicate his constitutional right to have a responsible medical decision made on his behalf.


Robert has the capacity to suffer, though we do not know its exact extent. Judge McNatt poignantly recognized this when he wrote "it still can be debated whether the conservatee's life is being preserved [by my order] or he is being sentenced to life" (JA at 625), sentenced, that is, to a life of suffering and negative feelings. [FN43] The failure to end this litigation now amounts to little other than physical cruelty to Robert, even though surely unintended cruelty. The failure to end this litigation now also delays effectuation of Robert's personal values and wishes.



FN43. This has been amply proved at trial (see, e.g., Rose's Response Brief below at 24-25) and in the updated medical reports from Mr. Braden's experts.



IV. Conclusion


Since death is the natural conclusion of all life, the precise moment may be less critical than the quality of time preceding it. Especially when the prognosis for full recovery from serious...incapacitation is dim, the relative balance of benefit and burden must lie within the patient's exclusive estimation.... (Thor, supra, at 739.) Robert has no chance of recovering even partially. All he has is the "quality of time" and life before he dies, and it is, tragically, a terrible quality as he cannot communicate, take care of himself or his family, be a husband or father, or do anything meaningful to him. Yet he can experience pain and suffering.


Robert and Rose's eldest child, Katie (a teenager at the time), wrote the following words to the trial court after he initially ruled against her mother. (JA 458) They tell us much about the man who is the subject of this litigation.

My dad was the kind of person that approached life with 110% For that reason, he tuned up our car himself instead of hiring a mechanic, *49 unclogged our drains instead of hiring a plumber, and helped me sister, brother and I with our homework instead of hiring a tutor. He enjoyed camping, Sunday evening barbecues, and listening to the Beatles, but his favorite activity was boating. I can remember taking our boat out onto the Delta and feeling the wind as it hit my face; and seeing my dad smile slyly as he glanced across his shoulder and pushed the throttle down. Faster! Faster! I simply cannot imagine him not being able to do all of these simple things that pleased him so much.... I know that my dad never wanted to be dependent on anything or anyone but himself because he told me so on many different occasions. Now I only wish that I wasn't so selfish when I visited him in the hospital after the accident and agreed to put him to life support. I thought that our support would somehow make him get better, but I know now that hope cannot overcome fate. I have very fond memories of my father, and I know that he loved my mom, Kerrie, Robbie, and I with all of his heart. But memories are all that I will ever have of him for I know in my heart that he died the moment he crashed. Since the accident he has been spared his life, but he is unable to go on living it. He survives in a gray shadow somewhere between life and death. The doctors say that he can feel virtually no pain, but I know he has suffered a great deal for the past two years. We were his life, and everything he did made his life worth living. Without that, he is nothing. Nothing in the world would make me happier than to be able to talk to him one last time; to hear him speak and see him smile. But I have realized for some time now that he will never get well enough to do even a few of the things in life that made him happy. It is time that he is able to move on to a better place where he will be happy once again.


As Katie said, Robert exists in a twilight state between life and death, though he is much closer to the latter than the former. Our Legislature has given the judgment of balancing benefits and burdens of further existence through medical treatment to Rose, Robert's wife of over 20 years. Let her and their children end his suffering and the loss of his choice to leave this world rather than linger in it to suffer and exist for no good purpose. Let Rose, Katie, Kerrie, and Robbie all begin their final stage of mourning for their loss of a husband and father, mourning that began 7 long years ago when Robert's *50 biographical life was crushed beyond rescue or repair in a senseless accident.


Let Rose make good on her marriage promise to love and honor him.