Wrongful Death Gain Reversed

Appeals court rebuffs gay civil union survivor’s standing in wrongful death claim

A New York appeals court in Brooklyn ruled on October 11 that a “wrongful death” lawsuit brought by a surviving civil union partner must be dismissed, because the partners were not “spouses” under New York law.

Ruling on an appeal by St. Vincent’s Hospital of a 2003 decision by Nassau County Supreme Court Justice John Dunne, a majority of the five-member panel found that the failure to provide a legal action for John Langan on the death of his partner Neil Conrad Spicehandler did not violate Langan’s constitutional rights. The entire panel agreed that the statute as written could not be interpreted as Langan requested, but two of the judges dissented on the outcome, finding a constitutional violation.

Lambda Legal, which represented Langan in arguments before the appeals court, has not yet announced whether an appeal would be filed. A hearing by the state’s highest court, the Court of Appeals, is discretionary on the court’s part. The energetic dissenting opinion by two members of the appeals panel provides a strong basis for appealing on the constitutional question, and if the state courts will not allow another appeal, the U.S. Supreme Court could be petitioned to consider the constitutional question.

Langan and Spicehandler had a civil union ceremony before a justice of the peace in Vermont during the summer of 2000, with 40 friends and family members in attendance. The couple, who were New Yorkers, traveled to Vermont specifically to be united, and then returned to New York to continue living here. In February 2002, Spicehandler died in St. Vincent’s Hospital under mysterious circumstances after two “successful” surgeries to treat injuries he sustained when a crazed driver, now in prison on a homicide conviction, ran him down on a Manhattan sidewalk.

Spicehandler’s mother and Langan filed a lawsuit against St. Vincent’s for medical malpractice and wrongful death. The malpractice claim, filed on behalf of Spicehandler’s estate, seeks compensation for the pain and suffering Spicehandler experienced as a result of the malpractice. Langan’s wrongful death claim seeks personal compensation for the economic loss he sustained from the wrongful death of his spouse, relief available in most states.

In fact, wrongful death statutes extend a cause of action to parents, children, siblings, and even first cousins, in addition to legal spouses. The immediate question for the court in this case is whether the statute should be interpreted to include a Vermont civil union partner as a spouse.

At the trial level, Justice Dunne decided that Langan should be allowed to sue because the civil union relationship established under Vermont law made Langan and Spicehandler “spouses” for purposes of the New York Wrongful Death Statute, under the doctrine of “comity,” under which the courts of one state give effect to the laws of other states as long as they do not violate a public policy of New York. Dunne concluded that New York would not have a strong policy objection to this limited recognition of Vermont civil unions, which specifically provide for surviving partners to bring wrongful death lawsuits.

Since Dunne decided that Langan could sue, he had no need to consider the widower’s alternative argument that denying him the right to sue would violate his equal protection rights under the Constitution.

All five judges on the Appellate Division panel disagreed with Dunne’s ruling about the Wrongful Death Statute. Writing for the majority of the court, Justice Robert A. Lifson said that it is “inconceivable” that the long-ago drafters of the Wrongful Death Statute would have contemplated same-sex couples claiming the right to sue as spouses.

Referring to a 34-year-old case from Minnesota that was denied review by the U.S. Supreme Court, Lifson said that it is “established” that same-sex couples have no constitutional entitlement to marry, and that the question was for the Legislature, not the courts. Lifson claimed that no legal developments over the intervening years had changed that ruling, and he mischaracterized the reference to marriage in the Supreme Court’s 2003 sodomy decision, Lawrence v. Texas, writing that all of the justices concurred that barring gay marriage “promote[s] a legitimate state interest.”

Dissenting for himself and another panel member, Justice Steven W. Fisher agreed with the majority that the Wrongful Death Statute could not be interpreted as Dunne had, but differed from the majority by finding that this result denied Langan his constitutional rights. Without detailed analysis, Lifson had written that the statute distinguishes between married and unmarried couples, and not on the basis of sexual orientation, and that Langan had failed to prove that such a distinction was irrational.

Fisher instead argued that the mutual support obligations under Vermont civil unions would allow an abandoned partner living in New York without his mate’s support to get a court order in Vermont compelling him to resume support. That order would be enforceable in New York under the U.S. Constitution’s Full Faith and Credit Clause. For Fisher, married couples and couples in civil unions are “similarly situated” on the issue of spousal support. The Wrongful Death Statute, Fisher pointed out, aims at compensating for the loss of spousal support. Equal protection principles therefore require similar treatment by the government.

The majority justified differential treatment by pointing to the state’s interest in preserving marriage. Fisher argued that this “seems to me to miss the point. This case is not about marriage. The plaintiff does not claim to have been married to the decedent, and clearly he was not, either under the law of New York or in the eyes of Vermont.”

Noting that the Supreme Court has held that “illegitimate” children cannot be barred from suing for the wrongful death of a parent, Fisher wrote, “neither can I identify any reasonably conceivable rational basis for classifying similarly-situated wrongful death plaintiffs on the basis of their sexual orientation.”

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