By Mike McKee
The Recorder
May 31, 2001

 

Justice Kathryn Mickle Werdegar Photo: Jason Doiy

Stockton housewife Rose Wendland wants to unhook her husband from the feeding tube that's kept him alive for seven years, but the California Supreme Court seemed reluctant Wednesday to let that happen without strong proof that's what the barely conscious man would have wanted.

During oral arguments in the widely watched case, the seven justices seemed to be leaning toward requiring Wendland to prove by clear and convincing evidence that ending Robert Wendland's life would be something he would have desired and in his best interests. Rose Wendland's lawyers argued that she should have to meet only the lower standard of preponderance of the evidence.

Justice Kathryn Mickle Werdegar seemed to best express the panel's thinking when she said the case presents "very special, very unique circumstances" that could have a bearing on an individual's constitutional right to life.

"There are constitutional implications," she said, "that, in my opinion, in this particular case, require a higher standard."

Conservatorship of the Person of Robert Wendland, S087265, began in the mid-90s when Robert's mother, Florence, and sister, Rebekah Vinson, objected to Rose Wendland's decision to terminate life support for Robert, who has been in a semiconscious state since shortly after a truck wreck north of Stockton in 1993.

Rose Wendland claimed that her husband had told her not long before the accident that if he ever came to serious harm, he would not want to be kept on life support. But Florence and Rebekah argued that, since Robert left no written directives, there was no clear evidence of what he actually desired.

While the battle has raged, Robert Wendland has remained in a Lodi hospital. He was fairly active at first, with reports of him catching balls and even operating a motorized wheelchair. But now one side says he is virtually lifeless and the other claims he still actively interacts with visitors.

California courts have long recognized the rights of conservators, like Rose, to terminate life support for people who are terminally ill or in a persistent vegetative state. But they hadn't dealt directly with a situation like Robert's, where there was some cognitive activity.

Then in February 2000, Sacramento's Third District Court of Appeal held that Rose Wendland could terminate life support, but only if she proved by clear and convincing evidence that her decision was made in good faith and in her husband's best interests.

The high court on Wednesday jumped on that concept, immediately questioning whether preponderance of the evidence isn't sufficient under Probate Code Section 2355, which gives conservators exclusive authority to make life-and-death decisions.

Chief Justice Ronald George asked Stockton lawyer Janie Hickok Siess, who represents Wendland's mother and sister, whether the court could really raise the bar to the higher standard to avoid constitutional problems.

"Mr. Chief Justice," Siess said, "the court must raise the bar, because the gravest issue is before you -- a man's life. The state has an obligation to preserve life, the sanctity of life."

Siess also pointed to a Fourth District Court of Appeal case in which clear and convincing evidence was required before an individual was sterilized. Certainly, she said, an equal burden of proof should be demanded where a man's life is on the line.

San Francisco lawyer James Braden, who represents Robert Wendland's interests, argued that in this case there was sufficient testimony about Robert's desires to meet not only the preponderance of the evidence standard but the higher clear and convincing standard.

"This is a man whose attitude about the condition he is in would find it intolerable," Braden said.

"Sufficient even if we have a person who is quite capable of thinking and feeling?" Chief Justice George asked.

"That's not the case here," Braden responded, claiming that Siess and others have repeatedly overstated Robert's condition. The man, he said, is barely above a persistent vegetative state.

Jon Eisenberg, who represented the Alliance of Catholic Health Care, an amicus curiae which sided with letting Rose unplug Robert, warned the justices that the court would be taking away patients' rights to autonomy if they force conservators to meet a high standard of proof.

San Francisco lawyer James Nelson, who represents Rose Wendland, agreed. "The Legislature," he told the justices, "has decided that it's better to be sure conservatees have a right to have their autonomy respected."

Justice Joyce Kennard, however, pointed to a couple of U.S. Supreme Court rulings, including one on parental rights, that she said require clear and convincing evidence.

"If we were to agree with you," she asked Nelson, "don't you foresee problems with such things as fundamental constitutional rights?"

Kennard also raised the specter of further trial proceedings. What if the court agreed on the clear and convincing standard, she said, but then Robert's condition worsened or there was more evidence that he wanted to die?

"Wouldn't it be fair," she said, "to allow the wife to get back in court and say, 'Trial court, we have this evidence?' "

Afterward, Siess said the justices gave her hope.

"Clearly, the court is concerned about the fundamental rights at issue," she said. "There is no case in this country that says you can deprive a fundamental right without clear and convincing evidence."

Siess' opponents conceded concern about the justices' interest in the constitutional issues and Kennard's suggestion about further trial litigation.

"This litigation has gone on 71/2 years," said Eisenberg, who is of counsel in the Oakland office of Encino's Horvitz & Levy, "and I think endless litigation means endless agony for this family."

That was reiterated by Rose Wendland and her three children -- Katie, 22, Kerrie, 20, and Robert, 16 -- who watched the arguments.

"I'm his daughter. You'd think I'd be one of the people he recognizes," Kerrie said. "There is nothing. My father is dead to me."

Several people with disabilities, many of them from Not Dead Yet, a Forest Park, Ill.-based disability rights group, were on hand to support Siess.

"It seemed like the justices were asking questions that showed a very good appreciation for the significance of this case to people with disabilities," said Diane Coleman, founder of the group. "We hope that the Supreme Court will balance these fundamental [constitutional] interests and not create a virtually irrefutable presumption that a person with severe disabilities wants to die."