Big California Legal Victory Affirming the Right to Be Cryopreserved

Cryonics, November 1990

by Carlos Mondragon

On Tuesday, October 2nd, California Superior Court Judge Aurelio Munoz decided that the Health Department must certify death certificates and issue disposition permits for cryonic suspension patients. His ruling affirmed the validity of all eight issues that we had raised in support of our rights. The ruling by Judge Munoz upheld the constitutional right to be cryonically suspended, the right of Alcor to contract with its members for cryonic suspension, and the applicability of the Uniform Anatomical Gift Act to cryonics.

For more than two years we have been occasionally reporting on the legal case we brought against the California Department of Health Services, Office of the Registrar of Vital Statistics. The suit was originally known as “Roe v. Mitchell”; and now “Alcor, Merkle & Henson v. Mitchell.” This litigation has cost Alcor over $100,000 in legal fees and countless hours of work by our staff. Alcor activist Saul Kent also spent tremendous effort helping to direct and promote this lawsuit. Was it worth it? Absolutely!

The History

The local county health department registrars are responsible for registering births and deaths in their jurisdictions, thus making it possible for the State Health Department to maintain statistics on birth rates, causes of death, life expectancy, etc. Their records concerning death involve two forms: the Death Certificate and the Permit for Disposition of Human Remains (Form VS-9). Death certificates are generated and signed by the attending physician or pathologist who names the cause of death. Before the county registrar will certify the death certificate, they require a completed VS-9 form stating the disposition of the body. That form contains four options: burial, cremation, cremation and disposition other than a cemetery, or scientific use. In instances of cryonic neurosuspension, we have been checking off “cremation.”

In May of 1988 we suspended a long-term Alcor member named “Bob.” Bob was the first suspension patient after Dora Kent. He was also the first whole body patient suspended by Alcor. Two months earlier, ACS/Trans Time had suspended its first whole body patient since 1980. We knew that in the past, whole body patients had been classified as “scientific use” on the VS- 9. Much to our surprise, Riverside County Registrar Virginia Whitney refused to issue a VS-9 for Bob. Had his death certificate not been recorded in another state, she would have refused to do that too. Trans Time had had a delay in getting a death certificate for their own patient, but when they did, they too were denied a VS-9.

Why was this happening? According to Ms. Whitney, she was following the instructions in her “Registrar’s Manual,” written and issued by the State Health Department in Sacramento. This manual specifically states that cryonic suspension is not a recognized form of disposition and therefore unlawful.

I made a few phone calls, working my way up the bureaucratic chain of command to David Mitchell, Chief Registrar in Sacramento. Mr. Mitchell told me that there was no law permitting cryonic suspension, therefore it was illegal and therefore we couldn’t get his form VS-9 and therefore Alcor was operating illegally. I offered to meet with Mr. Mitchell and his staff in order to devise an appropriate remedy to the situation. He told me to go to the legislature. Had the matter ended there, perhaps we could have lived without the precious form VS-9. After all, do we care if the state’s statistics are accurate? (Not me, at least not to the tune of $100K.)

Of course, the matter didn’t end there. On May 21st, 1988 there was a story in the local paper which reported that Alcor had done another suspension. (Remember that at this point we were still suspected of murder and grand theft; Coroner Carrillo’s string of self-destruct programs would not be obvious for at least five more months.) The headline read: “Alcor freezes body without County OK.” David Mitchell, Virginia Whitney, and Supervising Deputy Coroner Dan Cupido were all quoted saying that Alcor was breaking the law by having bodies in suspension without permits.

Did this justify undertaking a $100K battle? Who cares about the public rantings of bonehead bureaucrats (sticks & stones. . .)? Unfortunately, these particular boneheads are officials in the same Health Department that regulates hospitals. In spite of his Stalinist views on civics (“It looks pretty convincing that they broke the law. . . The bottom line is state law doesn’t authorize cryonic suspension”), David Mitchell’s edicts should be taken very seriously by any hospital administrator who wants to protect the interests of his institution.

At a minimum, Alcor needs non-interference from hospitals when they are caring for a terminally ill suspension member. We feared that no hospital in the state would release a patient to us, let alone allow us onto their premises. Why would any hospital risk running afoul of the Health Department, sticking its neck out for a patient they’d already written off?

It so happened that it had been 18 months since Dick Jones had been diagnosed with AIDS. Dick understood our concerns. He made inquiries. He was told that only a licensed mortician would be allowed to remove him from Sherman Oaks Community Hospital. They wouldn’t be particularly hasty about it either. Dick wanted the best transport that Alcor is capable of, but he wasn’t going to get it unless this problem could be resolved.

Getting legislation in a big state like California takes a lot of time and costs a whole lot of money (we have the best legislature money can buy). Moving to another state was impractical, as well as expensive and not guaranteed to solve our problems. Litigation was really the only way to go. The issue seemed fairly straightforward: we live in an ostensibly free country. An activity which has not been specifically outlawed by means of legal “due process” is permitted. Conversely, because an activity has not been recognized, mentioned in law, regulated, or otherwise sanctioned by the state, it is not automatically unlawful — quite the reverse. Communicating these concepts to Mr. Mitchell via the judicial system seemed an easily attainable goal. (It really could have been quick; read on to find why it wasn’t.)

After numerous conferences between myself, Saul Kent, attorney David Epstein, Dick, Dick’s less-than-enthusiastic partner Jenna McMahon, and his now infamous entertainment lawyer Barrett McInerney, Dick decided to file a lawsuit, and paid the first $25K legal retainer fee. Because he wanted to avoid personal publicity, the named plaintiff was “John Roe.” On the advice of Chris Ashworth (who had been handling the Dora Kent matter), David B. Epstein, a new associate at Garfield, Tepper, & Ashworth was selected to handle the case. (David is now a named partner in the firm.)

On September 1st, 1988 the suit was filed in Los Angeles County Superior Court. Since plaintiff “Roe” was suffering from a terminal illness, the case was put on the “Fast-Track” program (theoretically to be resolved at the Superior Court level within 180 days — HA!). We were encouraged when the case was assigned to Judge Munoz. A former public defender, Munoz had a reputation as a civil libertarian.

The defendants, Dr. Kenneth Kizer (Director of the State Department of Health Services), David Mitchell, and the Health Department itself were represented by Deputy State Attorney General Tammy Chung.

In the first week of October, 1988, Dick became seriously ill and was admitted to Sherman Oaks Community Hospital. In line with our continuing efforts to secure voluntary cooperation from the hospital, Mike Darwin gave a presentation to the hospital’s bioethics committee on October 10th. Jerry Leaf, Saul Kent, David Epstein, and I were in attendance. The questions following the presentation were not encouraging. While the nursing and administrative members of the panel were anywhere from neutral to friendly, the physicians were uniformly hostile.

Before the presentation, we all went upstairs to see Dick. His condition had deteriorated dramatically since we had last seen him. He was semiconscious, completely unable to communicate, and suffering from elevated intracranial pressure due to the dramatic growth of parasitic lesions in his brain (toxoplasmosis). His physician, Dr. Scarscella, informed us that it was quite possible Dick wouldn’t last the night.

My experience is that lawyers don’t normally do anything in a hurry unless a real emergency exists. Seeing Dick in this state instantly motivated Epstein. He shifted into high gear. Five days later, the hospital had been added to the suit as a co-defendant and a temporary restraining order against it had been issued.

Before even hearing the oral arguments over this restraining order, Judge Munoz said that in any conflict between the rights of a patient and the administrative requirements of the Health Department or the hospital, there was hardly a contest in his mind. The lawyer for the hospital had to avoid any bureaucratic arguments and instead find practical reasons against cooperating with Alcor. At one point, she actually said that our post- mortem procedures (particularly cardio-pulmonary support) might revive the patient after their doctor had pronounced him dead! While acknowledging that this might cause a hospital some embarrassment, Judge Munoz didn’t see this possibility as a “problem.”

Meanwhile, Dick had survived the crisis. He was able to go home again, one last time. The language of the restraining order was worked out with the hospital so that they would agree to let it stand until Dick died. We were allowed to use the heart-lung resuscitator, but we couldn’t administer any drugs while on their premises. Also, we had to engage the services of a local mortician, who would officially take charge of the body, though we would be allowed to stand by in the hospital. We felt this compromise was worthwhile since it eliminated any risk of having Munoz’ decision overturned.

When Dick was suspended in December of 1988, the lawsuit was also temporarily suspended. This was because of the dispute and litigation over the control of his estate. It would be up to his executor to decide if the suit could be continued in his name. Settling the estate took over six months. During this time, Epstein and Deputy AG Chung appeared before Judge Munoz to explain the delays on three occasions. At one of these “status conferences,” Epstein explained that one of the problems regarding Dick’s estate was that there was no certified death certificate. Ms. Chung (who is young and very inarticulate) helplessly tried to explain to the judge why her client wouldn’t certify Dick’s death certificate as he repeatedly interrupted her with the same question: “But he’s dead, isn’t he?”

The issue of Dick’s status in this lawsuit was resolved in July, 1989. Included in the settlement that ended the dispute over Dick’s estate was a clause to the effect that his estate would not participate further in the Health Department lawsuit. A new plaintiff had to be found.

We decided that Alcor, along with some suspension members would best serve as plaintiffs to continue the litigation. Epstein wanted people who were signed up themselves and who also had family signed up. It had been established in other cases that living persons have a right to choose the disposition of their human remains, and they have a right to make lawful contracts. Kinship establishes rights also. Unfortunately, legally dead persons have no rights.

Several Alcor members who fit the requirements Epstein had set volunteered. After he reviewed their personal profiles (provided by me) and interviewed some of them, he selected Keith Henson and Ralph Merkle to be the individually named plaintiffs. On October 24th, 1989 we filed a motion to amend the suit. It took nearly two months to overcome the objections made by the defendants (legal maxim: when in doubt, stall).

In December, 1989 we began the discovery process. “Discovery” is the gathering of evidence in support of one’s legal position. Epstein took the depositions of Dr. Kizer, Mr. Mitchell, and one of Mitchell’s underlings. Later, these were supplemented with written interrogatories. Keith Henson, using the Freedom of Information Act, secured copies of the Health Department’s files on cryonics. We found that the department had adopted its stand on cryonics after the Chatsworth debacle. We also found that Mitchell had sent letters to the Riverside District Attorney asking that Alcor be prosecuted for storing human remains. In one of those letters, he appointed himself judge and jury and said that we were guilty of a misdemeanor.

The case came down to four strong legal points in our favor:

1) Cryonic suspension is lawful and constitutionally protected.

2) The Health Department’s position constituted “regulations.” Since regulations must be adopted by a lawfully specified process (holding hearings, etc.) that was not followed, the Department was in violation of the law.

3) The Uniform Anatomical Gift Act is applicable to cryonics. The Health Department’s assertion that cryonics did not constitute “scientific use” was arbitrary, capricious, and discriminatory.

4) Alcor and its members have constitutionally protected rights of contract and freedom of association.

During the Spring of this year, the defendants waffled several times over the first of these issues. They would concede the legality of cryonics in written documents, only to go on asserting its unlawfulness in verbal communications. In the end, they took the position that cryonics is indeed legal, but Alcor’s practice of it was not.

Their reasoning was that of the various entities that could be recipients of anatomical donations, Alcor could only fit that category named “procurement organizations.” The legislature had defined eligible procurement organizations as those having been duly licensed as such by the Health Department. Since Alcor has no such license, they concluded, we were operating illegally.

So what might Alcor do to get such a license? Nothing. There is no such license. The Heath Department never got around to creating it. An absolutely classic bureaucratic Catch-22: “You have a right to do what you’re doing, but you need a license. Sorry, there isn’t one.”

A few conservative Southern California municipalities had done something similar in the late 60’s and early 70’s. People had a constitutional right to freedom of speech and assembly. But they had ordinances on the books saying that you had to have a “parade license” to demonstrate. The police departments didn’t issue such licenses. The parallel was obvious. Epstein tried ever so hard to explain it to Deputy Attorney General Tammy Chung, but she just couldn’t grasp the concept. Fortunately, one of the civil rights attorneys who helped have these kinds of ordinances overturned as unconstitutional was a young lawyer named Aurelio Munoz.

After several more frustrating delays (all on the part of the defendants), Judge Munoz ordered that final written motions be submitted by August 17th. He would hear oral arguments on August 23rd. Alas, it was the Judge’s turn to delay. At the last minute he postponed the hearing to September 27th.

The majority of the people in the courtroom on Thursday the 27th were Alcor suspension members. The event was being covered by the Los Angeles Times and the Riverside Press-Enterprise. The Health Department was asking for summary judgment in their favor. We were asking for summary adjudication of eight issues in our favor. There was nothing new in the oral arguments. Yet the hearing ended in an anti-climax. Munoz said he would render a decision on Tuesday, October 2nd, promptly at 8:30am.

The suspense ended a little early, when on the evening of Monday the 1st, I got a call from Epstein. He told me the judge’s clerk had read him a “tentative ruling” over the phone. We were to win on all eight issues, the defendant’s motion for summary judgment was denied, and we were to prepare a summary judgment and injunction in our own favor which the judge would sign.

In court the next morning, Tammy Chung tried frantically and in vain to change Munoz’ mind. But the minute order he signed was identical to his tentative ruling. The Health Department was ordered to refrain from NOT issuing VS-9’s or certifying death certificates for Alcor’s suspension patients. If they ever get around to setting up a licensing scheme for procurement organizations, it must be fair and reasonable. At last, TOTAL VICTORY! Epstein informed the court that we would be back soon, asking for our legal fees and sanctions against the Health Department for “frivolously defending the suit.”

Outside the courtroom, the newspaper reporters were joined by colleagues from a news radio station and TV Channel 9. David Epstein and I gave them interviews while Alcorians Hugh Hixon and Dave Christiansen looked on. Summarizing all of the above for these people wasn’t easy. We did get across the main message: We won, and we won big! On the way out, the TV people got a good shot of Dave’s Venturist T-shirt, “WORLD CRYONICS TEAM — We Play For Keeps.”

Over the next few days, we endured a flurry of media coverage. It was all positive and fairly accurate. (We even got congratulated by the UPS deliveryman and our postman.)

Because four of the eight issues decidedly nailed down our right to use the Uniform Anatomical Gift Act, our sign-up paperwork for new suspension members will soon be radically simplified. The decision also means that the zoning variance for our facility (pending for two years) can finally go forward.

As any cryonicist knows, it’s not over ’til it’s over. Tammy Chung filed objections to the wording of our judgment on October 19th. As we go to press, we await a hearing on October 25th, when Munoz will hear her arguments. Neither we nor our attorneys expect any changes to the result described above.

Once Judge Munoz signs his judgment and injunction, I will be personally re-applying for new VS-9 forms and certified Death Certificates for each of our suspension patients.