Whaley v. County of Tuscola, 94-1451

Decision Date12 July 1995
Docket NumberNo. 94-1451,94-1451
Citation58 F.3d 1111
PartiesDiane M. WHALEY, et al., William E. Jones, et al., Christine M. Tunney, et al., Rita Sharrard, Lucille Jones Miller, et al., George Saunders, et al., Plaintiffs-Appellants, v. COUNTY OF TUSCOLA Through its Governing Body, Tuscola County Board of Commissioners; Armando Herrera, Executive Director of Mid Regional Tissue Center; Armando Herrera, Individually, and d/b/a Central Michigan Eye Bank; Mid Regional Tissue Center, a Michigan Non-profit Corporation; Saginaw Community Hospital, a County Public Hospital; Herbert L. Nigg, M.D., Individually; Ronald G. Hines, M.D., Pathologist for Tuscola County; Irving M. Raber, M.D., a Pennsylvania Professional Corporation; County of Saginaw; M.B. Goldberger, D.O., Individually and as Saginaw County Chief Medical Examiner; James W. Baker, Personal Representative for the Estate of Armando Herrera, Deceased, Defendants-Appellees, Lankenaw Hospital, a Pennsylvania Non-profit Corporation; Christopher C. Taylor, Individually, and as a former Tuscola County Commissioner, Defendants.
CourtU.S. Court of Appeals — Sixth Circuit

Kenneth K. Wright (argued and briefed), Bay City, MI, John W. Grigg (briefed), Seward, Tally & Piggott, Bay City, MI, for Diane Whaley, William E. Jones, Christine M. Tunney, Rita Sharrard, Lucille Jones Miller, George Saunders, et al.

Kenneth G. Galica (briefed), Johnson, Rosati, Galica & Shifman, St. Clair Shores, MI, Daniel P. Dalton (argued and briefed), Johnson, Rosati, Galica & Shifman, Farmington Hills, MI, for County of Saginaw.

Frank M. Quinn, (argued and briefed), Braun, Kendrick, Finkbeiner, Schafer & Murphy, Bay City, MI, for County of Tuscola.

Michael J. Forster, Saginaw, MI, for Mid Regional Tissue Center.

H. William Martin, (briefed), McGraw, Martin & Heyn, Saginaw, MI, for Saginaw Community Hosp.

Frank M. Quinn, Braun, Kendrick, Finkbeiner, Schafer & Murphy, Bay City, MI, Tobin H. Dust (briefed), Fordney, Dust & Prine, Saginaw, MI, for Herbert L. Nigg, M.D.

Michael J. Huffman (argued and briefed), Smith & Booker, Saginaw, MI, Peter L. Diesel, Smith & Booker, Flint, MI, for Ronald G. Hines, M.D.

Jose T. Brown, (argued and briefed), Cline, Cline & Griffin, Grand Blanc, MI, for Irving M. Raber, M.D.

Daniel P. Dalton, Johnson, Rosait, Galica & Shifman, Farmington Hills, MI, Tobin H. Dust, Fordney, Dust & Prine, Saginaw, MI, for M.B. Goldberger, D.O.

Kenneth G. Galica, (briefed), Johnson, Rosati, Galica, Shifman, LaBarge, Aseltyne, Sugameli & Field, Bay City, MI, for Dr. Varner.

Before: BROWN, BOGGS, and NORRIS, Circuit Judges.

BAILEY BROWN, Circuit Judge.

The plaintiffs brought these Sec. 1983 actions claiming that the defendants violated their Fourteenth Amendment procedural due process rights by removing the corneas or eyeballs of their recently deceased relatives. The interesting question raised in this consolidated appeal is what relief the Constitution might provide when a state actor steals the eyes of a dead man. Specifically, we must decide whether Michigan law provides the next of kin with a constitutionally protected property interest in a deceased relative's body, including the eyes. The district court thought that it did not and dismissed the plaintiffs' claims. We disagree, REVERSE the court's decision, and REMAND for further proceedings. 1

I.

Because these cases present a purely legal question, we need not discuss the facts in great detail. Generally, the plaintiffs are the next of kin of deceased persons whose bodies were the object of autopsies by Dr. Ronald Hines at the Saginaw Community Hospital. 2 Dr. Hines is a pathologist who was employed on a contract basis by the Saginaw and Tuscola County Medical Examiners to perform autopsies. Dr. Hines's diener, or assistant, was the now-deceased Armando Herrera who, coincidently, owned and operated the Central Michigan Eye Bank and Tissue Center and was a certified "enucleator"--having the ability to remove eyes and corneas without causing damage to them. Herrera, as Hines's diener, apparently had a business agreement with Saginaw and Tuscola Counties, in which he would pay all the counties' expenses in performing the autopsies whenever corneas were removed, and half those expenses when they were not.

Pursuant to his duties assisting Dr. Hines, Herrera would sew up the body after Dr. Hines finished the autopsy. Allegedly, he would also remove the corneas and sometimes the eyeballs at this time and sell them out of his Eye Bank. In all of these cases, this was supposedly done without the next of kin's permission: According to the district court's opinion, in some cases the next of kin were never asked, in other cases the next of kin specifically refused to give their consent. The plaintiffs allege that this was authorized by both Tuscola and Saginaw Counties.

Once the removal of the corneas or eyeballs was discovered, the plaintiffs sued in state and federal court claiming both state and federal law violations. After the cases in federal court were consolidated, the plaintiffs agreed to the dismissal of all federal claims except their claim that they were deprived of their Fourteenth Amendment right to procedural due process when the alleged state actors removed the decedents' eyeballs or corneas. After hearing arguments, the court dismissed that claim under Federal Rule of Civil Procedure 12(b)(6), holding that Michigan law did not create an interest in a dead body sufficient to qualify as a "property interest" under the Fourteenth Amendment's Due Process Clause. The plaintiffs appealed.

II.

The Fourteenth Amendment only prohibits states from depriving a person of life, liberty, or property without due process of law. U.S. CONST. amend. XIV, Sec. 1. It follows, then, that if state actors, such as the defendants are alleged to be, do not infringe on the life, liberty, or property of the plaintiffs, there can be no due process violation. This case deals with the "property" portion of the clause, i.e., whether the next of kin have a property interest in the body, including the eyes, of a deceased relative.

The existence of a property interest for due process purposes depends in large part on state law. According to the Supreme Court:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Also, " 'property' interests subject to procedural due process are not limited by a few rigid, technical forms. Rather, 'property' denotes a broad range of interests that are secured by 'existing rules or understandings.' " Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972)(quoting Roth, 408 U.S. at 571-72, 577, 92 S.Ct. at 2706, 2709). These rules and understandings may in turn create a "legitimate claim of entitlement," worthy of due process protection. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978). Finally, whether a substantive interest created by the state rises to the level of a constitutionally protected property interest is a question of federal constitutional law. Id. In making this determination, courts must look beyond the law's nomenclature and to its substance.

All parties agree that the existence under Michigan law of a constitutionally protected property interest in a dead relative's body turns on our opinion in Brotherton v. Cleveland, 923 F.2d 477 (6th Cir.1991), where we found that such a property interest exists under Ohio law. The facts of Brotherton are similar to the facts here. Steven Brotherton was found dead and taken to the hospital. His wife refused to consent to the use of his body parts for transplant purposes. The coroner's office, pursuant to an established procedure, nevertheless removed Brotherton's corneas during the course of the autopsy. Upon discovery of this fact, his wife brought an action in federal court, alleging that her husband's corneas were removed without due process of law. As in this case, the district court dismissed the claim under Federal Rule of Civil Procedure 12(b)(6). We reversed, holding that Ohio law created a "legitimate claim of entitlement" and thus a property interest in a dead relative's body. Id. at 482.

In making this determination, we first noted that, traditionally, "property" is conceptualized as a bundle of rights which includes "the rights to possess, to use, to exclude, to profit, and to dispose." Id. at 481. We then examined Ohio law for indicia of these types of rights in a dead relative's body, and noted: (1) that Ohio's version of the Uniform Anatomical Gift Act, OHIO REV.CODE Sec. 2108.02(B), grants the next of kin the right to control the disposal of the body; (2) that the Ohio Court of Appeals decision in Everman v. Davis, 54 Ohio App.3d 119, 561 N.E.2d 547 (1989), acknowledged that the next of kin have the right to possess the body for burial; and (3) that the Ohio Court of Appeals decision in Carney v. Knollwood Cemetery Ass'n, 33 Ohio App.3d 31, 514 N.E.2d 430 (1986), allows a claim by the next of kin against those who disturb a buried dead body. Brotherton, 923 F.2d at 482. Although both of these Ohio appellate court decisions stressed that a general "quasi-property" right in a dead body did not exist, we found this of only marginal relevance, noting that the existence of a constitutionally protected property interest did "not rest on the label attached to a right granted by the state but rather on the substance of the right." Id. Consequently, we held, "the aggregate of rights granted by the state of Ohio to [the next of kin] rises to the level of a 'legitimate...

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