Cavitt, In re

• Decision Date: 08 March 1968
• Docket Number: No. 36648,36648
• Citation: 157 N.W.2d 171,182 Neb. 712
• Parties: In the Matter of the Sterilization of Gloria CAVITT. STATE of Nebraska, Appellant, Cross-Appellee, v. Gloria CAVITT, Vincent Dowding, Guardian, Appellee, Cross-Appellant.
• Court: Nebraska Supreme Court

Page 171

157 N.W.2d 171

182 Neb. 712

In the Matter of the Sterilization of Gloria CAVITT.

STATE of Nebraska, Appellant, Cross-Appellee, v. Gloria CAVITT, Vincent Dowding, Guardian, Appellee, Cross-Appellant.

No. 36648.

Supreme Court of Nebraska.

March 8, 1968.

Syllabus by the Court

1. Sections 83--501 to 83--508, R.R.S.1943, relating to the sterilization of mentally deficient persons as a condition prerequisite to parole or discharge, constitutes a valid exercise of the police power.

2. Such sterilization statute providing for the sterilization of mentally defective persons as a prerequisite to parole of discharge from the state institution for mentally defective persons, does not deny the equal protection of the law as class legislation.

3. The term 'mentally deficient' when applied to persons is not so vague and indefinite as to make the sterilization statute unconstitutional.

4. The sterilization statute is not unconstitutional in that quasi-judicial powers are unlawfully delegated to the board of examiners of mental deficient by the terms of the act.

5. The fact standards and guidelines provided by the act for the guidance of the board of examiners of mental deficient in administering the act in accordance with the legislative purpose, are sufficient, and do not constitute an unlawful delegation of legislative power.

6. The hearing provided by section 83--505, R.R.S.1943, before the board of examiners of mental deficient composed of competent physicians, with the right of appeal to the courts affords constitutional procedural due process.

7. The surgical operations of vasectomy on mentally defective male persons and of salpingectomy on mentally defective females are not inhuman, unreasonable, or oppressive, and in no sense of the word do they constitute punishment for crime.

8. Sections 83--501 to 83--508, R.R.S.1943, are in all respects constitutional and enforcible.

9. Under the provisions of section 7--113, R.R.S.1943, an attorney serving as guardian ad litem is entitled to reasonable compensation to be fixed by the court and chargeable as costs in the action.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellant.

Vincent Dowding, Luebs, Tracy & Huebner, Grand Island, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

CARTER, Justice.

This is an appeal by the State of Nebraska from a judgment of the district court for Gage County reversing an order of the Board of Examiners of Mental Deficient directing the sterilization of Gloria Cavitt.

The county court of Dawson County, after a hearing, committed Gloria to the Beatrice State Home on October 1, 1962, and she was admitted to the home on October 10, 1962, where she has remained to the time of trial in the district court, so far as the record shows. On August 23, 1966, the superintendent filed his petition with the board praying for a hearing before the board to determine whether Gloria should be sterilized as a condition prerequisite to her release from the home as provided by Chapter 83, article 5, R.R.S.1943, as amended. Notice of the hearing was given, a hearing held, and the order of the board entered that Gloria should not be paroled or discharged from the home unless sterilized. No contention is made that statutory procedures were not followed. Gloria was represented by Vincent L. Dowding, her guardian and a member of the bar. An appeal was taken to the district court for Gage County which determined that the evidence was insufficient to sustain the order of the board and that the controlling statutes authorizing Gloria's sterilization were unconstitutional and void. The State thereupon appealed to this court.

The primary question before this court is the constitutionality of sections 83--501 to 83--508, R.R.S.1943, particularly section 83--504, R.R.S.1943, which states: 'It shall be the duty of the board of examiners to make a psychiatric and physical examination of these patients and, if after a careful examination, such board of examiners finds that such patient is mentally deficient, in the opinion of the board of examiners, is apparently capable of bearing or begetting offspring and, based on their psychiatric and medical findings as a result of this examination, it is the opinion of the board of examiners that such patient should be sterilized, as a condition prerequisite to the parole or discharge, then such patient shall not be paroled or discharged, as the case may be, unless said patient be made sterile, and that such operation be performed for the prevention of procreation as in the judgment of the board of examiners would be most appropriate to each individual case.'

It will be noted that the findings of the board of examiners necessary to make an order for the sexual sterilization of a mentally defective patient are: (1) That the patient is mentally deficient, (2) that the patient is apparently capable of bearing or begetting offspring, and (3) that in its opinion such patient should be sterilized as a condition to parole or discharge. It is the contention of Gloria that the power to sexually sterilize a mentally deficient patient exists only when it is determined that the mental deficiency is such that it will be inherited by offspring. The statute does not require any such finding by the board nor does the evidence support any such finding. Under such circumstances it is asserted that the applicable statute does not contain adequate standards for the guidance of the board of examiners and by its terms permits arbitrary action by such board in such degree as to render the act unconstitutional as an unlawful delegation of legislative power.

It is generally the law that the police power of the state is broad enough to permit the sexual sterilization of mentally deficient inmates of the Beatrice State Home where such mental deficiency is hereditary and would probably be inherited by children born to such inmate. In re Clayton, 120 Neb. 680, 234 N.W. 630; Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000.

The Clayton case was decided by this court in 1931 under the sterilization law then in effect, which provided in part: '* * * if after a careful examination and investigation, such board of examiners find that such inmate is feeble-minded or insane * * *, that such inmate is capable of bearing or begetting offspring, that children born or begotten by such inmate would inherit a tendency to feeblemindedness, insanity, degeneracy * * *, that such children would probably become a social menace and that procreation by such inmate would be harmful to society and that such inmate should not be paroled or discharged, as the case may be, unless sterilized, * * *.' Laws 1929, c. 163, s. 4, p. 565. In 1957, the foregoing statute was repealed and the present law heretofore quoted was enacted in its stead. It is plain that the holdings in the Clayton case do not control the disposition of the present controversy.

It can hardly be disputed that the right of a woman to bear and the right of a man to beget children is a natural and constitutional right, nor can it be successfully disputed that no citizen has any rights that are superior to the common welfare. Acting for the public good, the state, in the exercise of its police power, may impose reasonable restrictions upon the natural and constitutional rights of its citizens. Measured by its injurious effect upon society, the state may limit a class of citizens in its right to bear or beget children with an inherited tendency to mental deficiency, including feeblemindedness, idiocy, or imbecility. It is the function of the Legislature, and its duty as well, to enact appropriate legislation to protect the public and preserve the race from the known effects of the procreation of mentally deficient children by the mentally deficient. But in the delegation of this legislative power to an administrative board, the question immediately arises, from the constitutional viewpoint, as to whether or not adequate standards and guidelines have been provided the administrative board to insure that the purpose of the statute disclosed by the act will be carried out.

In the present act, only two standards have been provided, first, that the patient is mentally deficient, and, second, that the patient is apparently capable of bearing offspring. After these findings have been made, the determination as to whether or not the patient will be sterilized is left entirely to the professional judgment of the board. It is a fundamental rule that the constitutionality of a legislative act is determined, not from what has been done under it, but from what may be done under it. It is apparent here that the board could order the sterilization of a patient who had suffered mental deficiency from an accident or disease, or some form of mental deficiency entirely unrelated to the transmission to offspring of a tendency to mental deficiency.

Gloria was 35 years of age at the time of trial in the district court and had been a patient in the Beatrice State Home since October 10, 1962. That she is mentally deficient is not disputed. The cause of her mental deficiency is not known. Before entering the home she had lived with one William Cavitt for some 14 years in what she called a commonlaw relationship. After breaking up her relationship with Cavitt, she had much difficulty in caring for her eight children resulting from this association and after her commitment they were cared for by her parents. She came from a low social and economic group. Both she and the children were provided for largely by public aid. Four of the doctors on the board who heard the petition of the superintendent of the home to determine if she should be sterilized as a condition precedent to her release from the home testified at the hearing in district court. None of these doctors had investigated the mental condition of her parents or...