State v. Powell

• Decision Date: 30 October 1986
• Docket Number: No. 67755,67755
• Citation: 11 Fla. L. Weekly 557,497 So.2d 1188
• Parties: 11 Fla. L. Weekly 557 STATE of Florida, et al., Appellants, v. Wade POWELL, et ux., et al., Appellees.
• Court: Florida Supreme Court

Page 1188

497 So.2d 1188

11 Fla. L. Weekly 557

STATE of Florida, et al., Appellants, v. Wade POWELL, et ux., et al., Appellees.

No. 67755.

Supreme Court of Florida.

Oct. 30, 1986.

Rehearing Denied Dec. 22, 1986.

Jim Smith, Atty. Gen. and Kenneth McLaughlin, Asst. Atty. Gen., Tallahassee, for State of Florida.

Alan C. Sundberg, George N. Meros, Jr. and F. Townsend Hawkes of Carlton, Fields, Ward, Emmanuel, Smith and Cutler, Tallahassee, for Medical Eye Bank, Inc., North Florida Lions Eye Bank, Inc., and Florida Lions Eye Bank, Inc.

Andrew G. Pattillo, Jr. and Russell W. LaPeer of Patillo and McKeever, Ocala, for William H. Shutze, M.D., Thomas M. Techman, M.D., and Keith Gauger.

Craig A. Dennis of Perkins & Collins, Tallahassee, for Florida Society of Ophthalmology, Inc. Donald W. Weidner, Associate Gen. Counsel, Jacksonville, for Florida Medical Association, Inc.

Robert A. Ginsburg, Dade Co. Atty. and Robert L. Blake, Asst. Co. Atty., Public Health Division, Jackson Memorial Hospital, Miami, for Dade County, intervenor.

Jerome J. Bornstein and Mark P. Lang, Staff Counsel, American Civil Liberties, Orlando, and Stephen T. Maher, American Civil Liberties Union Foundation of Florida, Inc., University of Miami School of Law, Coral Gables, for Wade Powell and Freda Powell.

James T. Reich, and Jack Singbush of Jack Singbush, P.A., Ocala, for Erwin White and Susan White.

Frederick H. von Unwerth of Kilpatrick & Cody, Washington, D.C., for the Eye Bank Association of America, Inc., amicus curiae.

Melinda L. McNichols of Arky, Freed, Stearns, Watson, Greer and Weaver, P.A., Miami, for Reverand Thomas J. Price, amicus curiae.

Benedict P. Kuehne of Bierman, Sonnett, Shohat and Sale, P.A., Miami, for the Rabbinical Association of Greater Miami, Temple Beth Or, and Rabbi Rami Shapiro, PH.D., amicus curiae.

OVERTON, Justice.

This is a petition to review a circuit court order finding unconstitutional section 732.9185, Florida Statutes (1983), which authorizes medical examiners to remove corneal tissue from decedents during statutorily required autopsies when such tissue is needed for transplantation. The statute prohibits the removal of the corneal tissue if the next of kin objects, but does not require that the decedent's next of kin be notified of the procedure. The Fifth District Court of Appeal certified that this case presents a question of great public importance requiring immediate resolution by this Court. We accept jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution, and, for the reasons expressed below, find that the statute is constitutional.

The challenged statute provides:

Corneal removal by medical examiners.--

(1) In any case in which a patient is in need of corneal tissue for a transplant, a district medical examiner or an appropriately qualified designee with training in ophthalmologic techniques may, upon request of any eye bank authorized under s. 732.918, provide the cornea of a decedent whenever all of the following conditions are met:

(a) A decedent who may provide a suitable cornea for the transplant is under the jurisdiction of the medical examiner and an autopsy is required in accordance with s. 406.11.

(b) No objection by the next of kin of the decedent is known by the medical examiner.

(c) The removal of the cornea will not interfere with the subsequent course of an investigation or autopsy.

(2) Neither the district medical examiner nor his appropriately qualified designee nor any eye bank authorized under s. 732.918 may be held liable in any civil or criminal action for failure to obtain consent of the next of kin.

The trial court decided this case by summary judgment. The facts are not in dispute. On June 15, 1983, James White drowned while swimming at the city beach in Dunellon, Florida. Associate Medical Examiner Dr. Thomas Techman, who is an appellant in this cause, performed an autopsy on James' body at Leesburg Community Hospital. On July 11, 1983, Anthony Powell died in a motor vehicle accident in Marion County. Medical Examiner Dr. William H. Shutze, who is also an appellant in this cause, performed an autopsy on Anthony's body. In each instance, under the authority of section 732.9185, the medical examiner removed corneal tissue from the decedent without giving notice to or obtaining consent from the parents of the decedent.

James' and Anthony's parents, who are the appellees in this case, each brought an action claiming damages for the alleged wrongful removal of their sons' corneas and seeking a judgment declaring section 732.9185 unconstitutional. ¹ The actions were subsequently consolidated.

In its judgment, the trial court noted that section 732.9185 "has as its purpose the commendable and laudable objective of providing high quality cornea tissue to those in need of same," but declared the statute unconstitutional on the grounds that it (1) deprives survivors of their fundamental personal and property right to dispose of their deceased next of kin in the same condition as lawful autopsies left them, without procedural or substantive due process of law; (2) creates an invidious classification which deprives survivors of their right to equal protection; and (3) permits a taking of private property by state action for a non-public purpose, in violation of article X, section 6(a), of the Florida Constitution. The court concluded that the state has no compelling interest in non-consensual removal of appellees' decedents' corneal tissue that outweighs the survivors' right to dispose of their sons' bodies in the condition death left them. ² For the reasons expressed below, we reject these findings.

In addressing the issue of the statute's constitutionality, we begin with the premise that a person's constitutional rights terminate at death. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981); Guyton v. Phillips, 606 F.2d 248 (9th Cir.1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980). If any rights exist, they belong to the decedent's next of kin.

Next, we recognize that a legislative act carries with it the presumption of validity and the party challenging a statute's constitutionality must carry the burden of establishing that the statute bears no reasonable relation to a permissible legislative objective. Johns v. May, 402 So.2d 1166 (Fla.1981). See also Harrah Independent School District v. Martin, 440 U.S. 194, 198, 99 S.Ct. 1062, 1064, 59 L.Ed.2d 248 (1979). In determining whether a permissible legislative objective exists, we must review the evidence arising from the record in this case.

The unrebutted evidence in this record establishes that the State of Florida spends approximately $138 million each year to provide its blind with the basic necessities of life. At present, approximately ten percent of Florida's blind citizens are candidates for cornea transplantation, which has become a highly effective procedure for restoring sight to the functionally blind. As advances are made in the field, the number of surgical candidates will increase, thereby raising the demand for suitable corneal tissue. The increasing number of elderly persons in our population has also created a great demand for corneas because corneal blindness often is age-related. Further, an affidavit in the record states:

Corneal transplants are particularly important in newborns. The brain does not learn to see if the cornea is not clear. There is a critical period in the first few months of life when the brain "learns to see." If the cornea is not clear, the brain not only does not "learn to see," but the brain loses its ability to "learn to see." Hence, corneal transplant in children must be made as soon as practicable after the problem is discovered. Without the medical examiner legislation, there would be virtually no corneal tissue available for infants and these children would remain forever blind.

The record reflects that the key to successful corneal transplantation is the availability of high-quality corneal tissue and that corneal tissue removed more than ten hours after death is generally unsuitable for transplantation. The implementation of section 732.9185 in 1977 has, indisputably, increased both the supply and quality of tissue available for transplantation. Statistics show that, in 1976, only 500 corneas were obtained in Florida for transplantation while, in 1985, more than 3,000 persons in Florida had their sight restored through corneal transplantation surgery.

The record also demonstrates that a qualitative difference exists between corneal tissue obtained through outright donation and tissue obtained pursuant to section 732.9185. In contrast to the tissue donated by individuals, which is largely unusable because of the advanced age of the donor at death, approximately eighty to eighty-five percent of tissue obtained through medical examiners is suitable for transplantation. The evidence establishes that this increase in the quantity and quality of available corneal tissue was brought about by passage of the statute and is, in large part, attributable to the fact that section 732.9185 does not place a duty upon medical examiners to seek out the next of kin to obtain consent for cornea removal. An affidavit in the record reveals that, before legislation authorized medical examiners in California to remove corneas without the consent of the next of kin, the majority of the families asked by the Los Angeles medical examiner's office responded positively; however, approximately eighty percent of the families could not be located in sufficient time for medical examiners to remove usable corneal tissue from the decedents.

An autopsy is a surgical dissection of the body; it necessarily results in a massive intrusion into the decedent. This record reflects that cornea removal, by...