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JUL 2 0 2007 CLERK Nf COURT SUPREMOF OHIO William D IN THE SUPREME COURT OF OHIO MARK ALBRECHT, et al., Plaintiffs-Respondents, . Case No.: 07-05 07 V. On Certified Question from the the United States District Court BRIAN TREON, M.D., et al., . for the Southern District of Ohio, Dist. Ct. Case No.: 1:06-CV-274 Defendants-Petitioners. BRIEF OF AMICI CURIAE OHIO STATE CORONERS ASSOCIATION AND OHIO STATE MEDICAL ASSOCIATION IN SUPPORT OF DEFENDANTS-PETITIONERS Mark D. Tucker (0036855), Counsel of Record John R. Climaco (0011456) [email protected] j rclim(l climacolaw. com C.David Paragas (0043908) David M. Cuppage (0047104) dl)aragas(@bfca.com [email protected] BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP Scott D. Simpkins (0066775) 88 East Broad Street [email protected] 9th Floor Climaco, Lefkowitz, Peca, Columbus, Ohio 43215-3506 Wilcox & Garofoli Co., LPA (614) 223-9300 55 Public Square, Suite 150 FAX (614) 223-9330 Cleveland, Ohio 44113 Counsel for Amici Curiae Ohio State Coroners (216) 621-8484 Association and Ohio State Medical Association FAX (216) 771-1632 Counsel for Amicus Curiae Cuyahoga County Helen E. Mason (0051967) [email protected] Mark Landes (0027227) Clennont County Prosecutor's Office mlgisaacbrant.com 101 East Main Street David G. Jennings (0040487) Batavia, Ohio 45103 d gj na,i saacbrant. com (513) 732-7585 IsAAc, BRANT, LEDMAN & TEETOR FAX (513) 732-7592 250 East Broad Street, Suite 900 Counselfor Defendants-Pet ioners Columbus, Ohio 43215-3742 (614) 221-2121 Patrick J. Perotti (0005481) FAX (614) 365-9516 [email protected] Counsel for Amici Curiae Sixty-Five Dworken & Bernstein Co., LPA Ohio Counties, County Commissioners 60 South Park Place Association of Ohio, Ohio Association Painesville, Ohio 44077 of Chiefs of Police, Buckeye State (440) 352-3391 Sheriffs'Associatprnr,-a Prosecuting FAX (440) 352-3469 Attorneys Associ tion Counselfor Plaintffs-Respondents FRED (Counsel continued on next page) JUL 2 0 2007 CLERK nF COURT SUPREMOF OHIO William D. Mason David G. Lambert (0030273) Renee A. Bacchus (0063 676) Frederick W. Whatley (0010988) Assistant Prosecuting Attorneys Cuyahoga County Prosecutor's Office 1200 Ontario Street, 8th Floor Cleveland, OH 44113 (216) 443-5869 FAX (216) 443-7602 Counselfor Amicus Curiae Cuyahoga County Ronald J. O'Brien (0017245) Franklin County Prosecuting Attorney Nick A. Soulas Jr. (0062166) Patrick J. Piccininni (0055324) Arnold P. Thies (0074641) 373 South High Street 13th Floor Columbus, Ohio 43215 (614) 462-3520 FAX (614) 462-6012 Counsel for Amici Curia Franklin County Board of Comrnissioners and Franklin County Coroner John H. Metz (0019039) metzlegal n,aol.com 4400 Carew Tower 441 Vine Street Cincinnati, OH 45202-3016 (513) 241-8844 FAX (513) 241-6090 Counsel for Plaintiffs-Respondents Patrick M. Fardal (0058600) 365 Stonewall Court Dublin, Ohio 43017 (614) 889-0333 Counsel for Amicus Curiae National Association of Medical Examiners ii TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iv 1. INTRODUCTION ............................................................................................................... I II. STATEMENT OF THE CASE AND THE FACTS ................................ ............................ 2 III. ARGUMENT .......................................................................................................................4 Proposition of Law: THE NEXT OF KIN OF A DECEDENT, UPON WHOM AN AUTOPSY HAS BEEN PERFORMED, DO NOT HAVE A PROTECTED RIGHT UNDER OHIO LAW IN THE DECEDENT'S TISSUES, ORGANS, BLOOD, OR OTHER BODY PARTS THAT HAVE BEEN REMOVED AND RETAINED BY THE CORONER FOR FORENSIC EXAMINATION AND TESTING .....................................4 A. Introduction ..............................................................................................................4 B. Ohio County Coroners' Duties and Responsibilities ................................................4 C. The Viability Of Plaintiffs' Due Process Claim Is Dependent Upon Their Property Rights As Defined By State Law . .............................................................8 D. Under Ohio Law, Next Of Kin Do Not Have A Property Interest In A Decedent's Tissues And Organs Removed During An Autopsy For Exaniination And Testing . .......................................................................................8 IV. CONCLUSION ..................................................................................................................16 CERTIFICATE OF SERVICE ......................................................................................................17 iii TABLE OF AUTHORITIES Cases Pake Barnes-Wallace v. City ofSan Diego (9th Cir. 2006), 471 F.3d 1038 ..........................................11 Board of Regents v. Roth (1972), 408 U.S. 564 ...............................................................................8 Brotherton v. Cleveland (6th Cir. 1991), 923 F.2d 477 .................................................9, 10, 11, 12 Brotherton v. Cleveland (6th Cir. 1992), 968 F.2d 1214 ...............................................................12 Carney v. Knollwood Cemetery Ass'n (Cuyahoga App. 1986), 33 Ohio App3d 31 .............4, 9, 10 Everman v. Davis (Montgomery App.), 54 Ohio. App.3d 119, appeal dismissed (1989), 43 Ohio St.3d 702 ......................................................................................................5, 9, 10 Hadsell v. Hadsell (Allen Cir.Ct. 1893), 7 Ohio C.C. 196 ........................................................9, 10 Hainey v. Parrott (S.D.Ohio Sept. 28, 2005), No. 1:02-CV-733, 2005 WL 2397704....7, 9, 12, 13 Hayhurst v. Hayhurst (Hamilton C.P. 1926), 4 Ohio L.Abs. 375 .............................................9, 10 Houston v. Dutton (6th Cir.), 50 F.3d 381, cert. denied (1995), 516 U.S. 905 .............................11 Howard v. Grinage (6th Cir. 1996) 82 F.3d 1343 . ..........................................................................8 Israf:l v. Russell (6th Cir. 2001), 276 F.3d 768 .............................................................................11 McNamara v. Rittman (2005), 107 Ohio St.3d 243, 2005-Ohio-6433 ............................................8 Montgomery v. County of Clinton (6th Cir. 1991), 940 F.2d 661, 1991 WL 153071 ...................12 Smith v. F.W. Morse & Co. (1st Cir. 1996), 76 F.3d 413 ..............................................................11 Soliday v. Miami County (6th Cir. 1995), 55 F.3d 1158 ................................................................12 State ex rel. Horvath v. State Teachers Retirement Bd. (1998), 83 Ohio St.3d 67, 1998- Ohio-424, cert. denied (1999), 525 U.S. 1179 .....................................................................8 State ex rel. R.T.G., Inc. v. State (2002), 98 Ohio St.3d 1, 2002-Ohio-6716 ..................................8 Taylor Steel, Inc. v. Keeton (6th Cir. 2005), 417 F.3d 598 ............................................................11 Whaley v. County of Tuscola (6th Cir. 1995), 58 F.3d 1111 .........................................................12 iv Statutes 42 U.S.C. § 1983 .............................................................................................................................3 R.C. 313.12 ......................................................................................................................................5 R.C. 313.121 ....................................................................................................................................5 R.C. 313.123 ..........................................................................................................................4, 7, 13 R.C. 313.123(A)(1) ..........................................................................................................................6 R.C. 313.123(B)(1) ................................................................................................................2, 6, 13 R.C. 313.123(B)(2) ....................................................................................................................6, 13 R.C. 313.131 ....................................................................................................................................5 R.C. 313.15 ......................................................................................................................................5 R.C. 313.19 ......................................................................................................................................5 Other 2006 Op. Ohio Att'y Gen. 2006-039 (Sept. 13, 2006) ....................................................................5 National Ass'n of Medical Examiners ("NAME') Standard B4: Forensic Autopsy Performance; NAME Standard G26: Specimens for Laboratory Testing ...........................6 v I. INTRODUCTION This case involves an important issue: whether relatives of a person who has died under sudden, unusual, or suspicious circumstances have a right, protected under the Fourteenth Amendment to the United States Constitution, to the body parts of the deceased which have been removed for forensic examination and testing and retained after the body has been returned to the family. Resolution of that issue necessarily requires this Court to address a fundamental issue of Ohio law: whether relatives of deceased persons have, under Ohio law, a property right in their deceased relative's tissue and organs removed for such forensic examination
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