OFFICES AND OFFICERS ‑- COUNTY ‑- CORONER ‑- DEATH ‑- ISSUANCE OF PRESUMPTIVE DEATH CERTIFICATE
Under the applicable state statutes relating to the issuance of death certificates (RCW 70.58.160-70.58.180) a county coroner does not have the authority to issue a presumptive death certificate based on circumstantial evidence where no body has been found.
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June 20, 1980
Honorable Robert K. Leick
Stevenson, Washington 98648
Cite as: AGO 1980 No. 15
This is written in response to your recent request for our opinion on a question which we paraphrase as follows:
Under the applicable state statutes relating to death certificates, does a county coroner have the authority ". . . to issue a presumptive death certificate based on circumstantial evidence of death in situations where no bodies have been found."
For the reasons set forth in our analysis we believe the foregoing question must be answered in the negative.
At the outset, let us make clear the precise thrust of this opinion. In any instance involving the death or apparent death of a person, there are two distinct issues which must ordinarily be resolved. They are, first the [[Orig. Op. Page 2]] fact of death and, second, the cause thereof. In other words, is the person in question truly deceased, and if so, what was the cause of his or her death?
Undoubtedly, the best evidence of the fact of death is a dead body. And, in turn, the best evidence of the cause of death is ordinarily the firsthand testimony of an attending physician or some other qualified person who was actually present at the time of death. But both the fact and the cause of death can also be established, in court, by circumstantial evidence. Accord,Adler v. University Boat Mart, 63 Wn.2d 334, 387 P.2d 509 (1963) and numerous other cases from both this state and other jurisdictions which are cited therein. As was observed by the Court in that case, at page 337:
". . . The contention that the body of Adler not having been recovered death could not be proved, without the presumption afforded by the lapse of 7 years, is without merit. Death, like any other fact, may be proved by circumstantial evidence . . .
"Adler was last seen when the small boat from the Dispatch approached Millholland and his son. After they had been taken aboard, a thorough search was conducted buy only a buoyant cushion could be found. Adler had been, at that time, a mile and a half from shore and had been in the cold water an hour. The other two men were suffering from exposure when rescued. There is no suggestion of any reason why he should want to disappear. It seems to us that the court could have reached no other reasonable conclusion than that Adler had drowned."
Thus, it is entirely proper for a court (whether in a civil action for wrongful death as inAdler, supra, or, for example, in the context of a claim for life insurance death benefits, federal social security or survivors' benefits under a state or private pension program) to receive and consider such circumstantial evidence and to make appropriate findings of fact on the basis of such evidence‑-both as to the fact of death and the cause‑-without also requiring a dead body to be produced. But that isnot the issue raised by your opinion request. Rather, what you have asked is [[Orig. Op. Page 3]] whether a county coroner has the legal authority under state law to issue a death certificate‑-attesting to the fact of death as well as the apparent cause thereof‑-solely on the basis of such circumstantial evidence. And it is that question which, in our opinion, must be answered in the negative.
Before turning to the statutes involved, it may be useful to note, for comparative purposes, one which does not apply under the circumstances giving rise to your inquiry.1/ We have reference to RCW 5.40.020 which originated as § 1, chapter 101, Laws of 1945 (or just prior to the end of World War II) and reads as follows:
"A written finding of presumed death, made by the Secretary of War, the Secretary of the Navy, or other officer or employee of the United States authorized to make such finding, pursuant to the federal missing persons act (56 Stat. 143, 1092, and P.L. 408, Ch. 371, 2d Sess. 78th Cong.; U.S.C. App. Supp. 1001-17), as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office or other place in this state as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances and place of his disappearance."
Interestingly, it was the same 1945 legislature that enacted the foregoing presumptive death law covering such wartime casualties which also produced the pertinent statutes dealing with the preparation of death certificates by county coroners. Those statutes are now codified as RCW 70.58.160-70.58.180 and they originated as §§ 1-3 of chapter 159, Laws of 1945. They read as follows:
[[Orig. Op. Page 4]]
"A certificate of every death or fetal death shall be filed with the local registrar of the district in which the death or fetal death occurred within three days after the occurrence is known, or if the place of death or fetal death is not known, then with the local registrar of the district in which the body is found within twenty-four hours thereafter. In every instance a certificate shall be filed prior to the interment or other disposition of the body: PROVIDED, That a certificate of fetal death shall not be required if the period of gestation is less than twenty weeks."
"The funeral director or person in charge of interment shall file the certificate of death or fetal death. In preparing such certificate, the funeral director or person in charge of interment shall obtain and enter on the certificate shall personal data as the certificate requires from the person or persons best qualified to supply them. He shall present the certificate of death to the physician last in attendance upon the deceased, or, if the deceased died without medical attendance, to the health officer, coroner, or prosecuting attorney having jurisdiction, who shall thereupon certify the cause of death according to his best knowledge and belief and shall sign the certificate of death or fetal death within two days after being presented with the certificate unless good cause for not signing the certificate within the two days can be established. He shall present the certificate of fetal death to the physician, midwife, or other person in attendance at the fetal death, who shall certify the fetal death and such medical data pertaining thereto as he can furnish."
[[Orig. Op. Page 5]]
"If the death occurred without medical attendance, the funeral director or person in charge of interment shall notify the coroner or prosecuting attorney if there is no coroner in the county. If the circumstances suggest that the death or fetal death was caused by unlawful or unnatural causes or if there is no local health officer with jurisdiction, the coroner, or if none, the prosecuting attorney shall complete and sign the certification, noting upon the certificate that no physician was in attendance at the time of death. In case of any death without medical attendance in which there is no suspicion of death from unlawful or unnatural causes, the local health officer or his deputy, the coroner and if none, the prosecuting attorney, shall complete and sign the certification, noting upon the certificate that no physician was in attendance at the time of death, and noting the cause of death without the holding of an inquest or performing of an autopsy or post mortem, but from statements of relatives, persons in attendance during the last sickness, persons present at the time of death or other persons having adequate knowledge of the facts.
"The cause of death, the manner and mode in which death occurred, as noted by the coroner or if none, the prosecuting attorney or the health officer and incorporated in the death certificate filed with the bureau of vital statistics of the board of health shall be the legally accepted manner and mode by which the deceased came to his or her death and shall be the legally accepted cause of death."
The primary point to be noted about these statutes is that, unlike RCW 5.40.020,supra, they really do not involve a certification of the fact of death at all. Instead, as evidenced by the existence of a dead body which [[Orig. Op. Page 6]] is in the possession of a funeral director or other person ". . . in charge of interment . . ," the fact of death is assumed and it is only the cause of death which remains to be resolved.
In those cases where there was a physician or the like in attendance at the time of death, the funeral director or other person in charge of interment is to seek and obtain certification of the cause of death from that medical attendant. Conversely, where the deceased died without medical attendance, a certification of the apparentcause of death is to be obtained from the health officer, coroner or prosecuting attorney having jurisdiction ". . . who shall thereupon certify the cause of death according to his best knowledge and belief . . ." But nowhere in the statutes (as above quoted) is there any indication that such a health officer,coroner or prosecuting attorney is also thus to be looked to for the purposes certifying the fact of death on the basis of such circumstantial evidence.
In so reading the statutes, we are fully aware of the prior opinion of this office which was written on August 13, 1946, to the then director of the State Department of Health and concluded as follows:
"The state registrar is authorized to file death certificates in the case of two passengers presumed to have drowned when a school bus plunged into Lake Chelan on November 26, 1945, and the bodies were never recovered. Said certificates must be signed by one of the officials enumerated in chapter 159, Laws of 1945, and show why the bodies were not recovered and why they are presumed dead, or in the alternative, the state board of health may establish a new type of certificate to conform to presumption of death cases."
In all respect to its author, however, we do not believe it wise to rely on that opinion in the instant case for two reasons. First, it will be seen that the precise question there answered actually involved the authority of the state registrar of vital statistics to accept and file a so-called "presumptive death certificate" and not the authority of a county coroner to prepare and execute such a certificate. And second, to the limited extent that it nevertheless also dealt with that latter issue, the opinion was, in our judgment, simply wrong.
[[Orig. Op. Page 7]]
As above indicated, RCW 70.58.160-70.58.180, supra, originated as §§ 1-3 of chapter 159, Laws of 1945. Accordingly, although then referred to by their Remington Code designations, it was those same statutes which were before this office when the opinion of August 13, 1946,supra, was written. And what was said of them in that opinion, very briefly, was as follows:
"We refer you to chapter 159, Laws of 1945 (6024-1 to 6024-6 Rem. Supp. 1945) which makes provision in sections 2 and 3 thereof for the health officer, coroner, or prosecuting attorney having jurisdiction to certify as to the cause of death whenever the deceased dies without medical attendance. By said certificate the official accepts responsibility as to the facts of death and accordingly you could file the certificate upon the basis of such a certificate." (Emphasis supplied)
The error in analysis which was thus committed was that of confusing the two distinct issues identified at the outset of this opinion‑-the fact v. the cause of death. Under the then recently enacted 1945 legislation, the cause of death could be established on the basis of circumstantial evidence ". . . whenever the deceased dies without medical attendance." It was therefore apparently reasoned that the fact of death could also be established in the same manner‑-overlooking the rest of the statute under which the physical presence of a dead body about to be interred is the initial, triggering element.
One further point should be noted before closing. Although RCW 70.58.180,supra, concludes by providing that the cause of death which is indicated in a duly executed death certificate ". . . shall be the legally accepted cause of death" there is nothing in that statute‑-or in any other statute or court decision which we have discovered‑-which purports to say that the existence of a death certificate is required to be accepted by a court or by anyone else as conclusive proof that death has occurred. To the contrary, the applicable rule of evidence, as summarized in 32 C.J.S. 2d, Evidence, § 638 (page 824) is as follows:
". . . Generally, where death certificates are made under statutory authority and under conditions assuring the accuracy of the [[Orig. Op. Page 8]] recitals of fact therein contained, they may be allowed in evidence under the rule admitting public documents or records, and are not to be excluded as mere police regulations; but where the maker of the death certificate could not have had personal knowledge of the facts as to which the certificate is offered as evidence, the certificate is inadmissible to show such facts and should as to those matters be excluded as hearsay."
Accordingly, even if we were to adhere to the view that a county coroner is somehow authorized by the provisions of RCW 70.50.160-70.50.180, supra, to prepare, execute and file such a death certificate as is contemplated by your present question, the resulting practical effect of that certificate, as proof in court of the fact of death, would seem to us to be rather doubtful under the statutes as they now exist.2/
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/While not specified in your letter, your question undoubtedly relates, particularly, to the case of those persons who have been reported to be missing in your county as a consequence of the May 18, 1980, eruption of Mt. St. Helens.
2/In this regard we are also mindful, however, of a brief passing reference which was made in the above‑discussed 1946 opinion to chapter 101, Laws of 1945 (RCW 5.40.020) supra, of which it was said:
"The difficulty experienced in this type of case was partially removed by chapter 101, Laws of 1945 (1257-1 to 1257-3 Rem. Supp. 1945), which makes a finding made pursuant to the Federal Missing Persons Actprima facie evidence of death in this state." (Emphasis supplied)
While we cannot here approve, legally, of the then attorney general's apparent attempt to complete the job through the issuance of an interpretative opinion, it would clearly be possible for the legislature to do so‑-either at its next regular session or even earlier if convened for a special session under the now applicable provisions of our state constitution.