In re Hendrickson, 28248.

• Decision Date: 05 March 1942
• Docket Number: 28248.
• Parties: In re HENDRICKSON.
• Court: Washington Supreme Court

123 P.2d 322

12 Wn.2d 600

In re HENDRICKSON.

No. 28248.

Supreme Court of Washington, En Banc.

March 5, 1942

Proceeding in the matter of the sterilization of Hollis Hendrickson. From an order permanently enjoining superintendent of the Western State Hospital for the Insane from carrying out sterilization order of the Institutional Board of Health, the prosecuting attorney of Pierce County, acting as attorney for the Institutional Board of Health, appeals.

Affirmed and cause remanded with directions.

STEINERT J., ROBINSON, C.J., and BEALS, J., dissenting in part.

Appeal from Superior Court, Pierce County; F. G Remann, Judge.

Thor C. Tollefson and Hugo Metzler, Jr., both of Tacoma, for appellant.

Smith Troy, W. A. Toner, of Olympia, amicus curiae.

Marshall McCormick, of Tacoma, for respondent.

DRIVER, Justice.

This appeal involves the constitutionality of chapter 53, Laws of 1921, p. 162, Rem.Rev.Stat. § 6957 et seq., an act providing for the sterilization of certain mentally deficient and morally degenerate persons and of habitual criminals. The pertinent portions of the statute are as follows:

'Section 1. It shall be and is hereby declared the duty of the superintendents of all state institutions having the care of individuals held in restraint to report quarterly to the institutional Board of Health, all feeble minded, insane, epileptic, habitual criminals, moral degenerates and sexual perverts, who are persons potential to producing offspring who, because of inheritance of inferior or anti-social traits, would probably become a social menace or wards of the State.

'Sec. 2. It shall be the duty of the Institutional Board of Health to examine into the inmate traits, the mental and physical conditions, the personal records, and the family traits and histories of all persons so reported * * *; and if in the judgment of a majority of the said Board procreation by any such person would produce children with an inherited tendency to feeble mindedness, insanity, epilepsy, criminality or degeneracy, and there is no probability that the condition of such person so examined will improve to such an extent as to render procreation by any such person advisable, or if the physical or mental condition of any such person will be substantially improved thereby, then it shall be the duty of said Board to make an order directing the superintendent of the institution in which such inmate is confined to perform or cause to be performed upon such inmate such a type of sterilization as may be deemed best by said Board.

'Sec. 3. The purpose of said investigation, findings and orders of said board shall be for the betterment of the physical, mental, neural, or psychic condition of the inmate, or to protect society from the menace of procreation by said inmate, and not in any manner as a punitive measure; and no person shall be emasculated under the authority of this act except that such operation shall be found to be necessary to improve the physical, mental, neural or psychic condition of the inmate.

'Sec. 4. After fully inquiring into the condition of each of such inmates said board shall make separate written findings for each of the inmates whose condition has been examined into, and the same shall be preserved in the records of said board, and a copy thereof shall be furnished to the superintendent of the institution in which the inmate is confined, and if an operation is deemed necessary by said board, then a copy of the order of said board shall forthwith be served on said inmate, or in the case of an insane person, upon his legal guardian, and if such insane person have no legal guardian then upon his nearest known kin within the State of Washington, and if such insane person have no known kin within the State of Washington, then upon the custodial guardian of such insane person.'

Other sections of the act provide that any inmate or, in the case of a person under guardianship or disability, the guardian of the inmate may appeal from the order of the board to the superior court within fifteen days after receipt of notice of the board's decision by filing an informal notice of appeal with the secretary of the board; that, upon an appeal being taken, a transcript of the proceedings, findings, and order of the board shall be transmitted to the superior court, where a trial de novo shall be had as provided by statute for the trial of actions at law, and, if the inmate is financially unable to employ an attorney, the court shall then appoint one to represent him; and that, if no appeal is taken from an order of the board, or the board's decision is sustained on appeal by the court or jury, it shall be the duty of the superintendent of the institution in which the inmate is held to effect the sterilization by performing, or causing to be performed, the surgical operation specified in the order.

On January 24, 1940, the superintendent of the Western State Hospital for the Insane, pursuant to the provisions of the foregoing statute, reported to the institutional board of health that Hollis Hendrickson, an insane inmate of the hospital, was a fit subject for sterilization. The board, after conducting an examination, found that procreation by the inmate would be likely to produce children having an inherited tendency to insanity, and ordered that he be sterilized by vasectomy. A copy of the order was served upon the inmate's father as the next of kin. The father's letter of protest was treated as a notice of appeal, and a transcript of the board's proceedings was filed in the superior court for Pierce county. An attorney appointed by the court to represent the inmate moved to quash the proceedings, one of the grounds being the unconstitutionality of the sterilization act. The court granted the motion and entered its order permanently enjoining the hospital superintendent from carrying out the sterilization order of the institutional board of health. The prosecuting attorney of Pierce county, acting as attorney for the board, has appealed.

The principal question presented is whether or not the cited sterilization statute contravenes the due process clause of the Fourteenth Amendment to the constitution of the United States, which forbids any state to 'deprive any person of life, liberty, or property, without due process of law, * * *' and the practically identical provision of the state constitution, Art. I, § 3.

Since the United States supreme court, in 1927, decided the case of Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000, it has been considered well settled that, so far as its substantive features are concerned, a sterilization statute such as we have here is within the police power of a state; hence its undoubted interference with personal liberty is not subject to constitutional proscription. Respondent's counsel freely admits as much and his attack is directed against only the procedural aspect of the statute. In effect, he grants that the legislature, in the interest of the public safety, morals, health, and welfare, had the power to authorize the sterilization of defectives within the enumerated categories, but he urges that it failed to provide the procedural machinery necessary to make the statute constitutionally operative. Counsel also concedes that, as a general rule, a law which provides that the decision of an administrative board shall be subject to appeal to the courts, where a full de novo hearing is afforded, satisfies the requirements of due process. He contends that the law here involved fails to make provision for notice and an opportunity to be heard in the courts, such as the due process clause requires.

The statute makes no provision for notice to an inmate of the hearing Before the institutional board of health, nor does it afford him any opportunity to appear and present his defense at such hearing. If he is to have his day in court, then it must be by virtue of the provision for appeal to the superior court from the order of sterilization. Examination of § 4, p. 164, of the act discloses that the board's order shall be served in a different manner in each of four situations, as follows:

First, if the inmate is a criminal or feeble-minded person (more accurately, anyone within the statute not insane), the order of the board shall be served on the inmate. (There is no provision for service on a guardian or next of kin.) Second, in case of an insane person having a legal guardian, service shall be made on such guardian. Third, if an insane person has no legal guardian, then the order shall be served on his nearest known kin within the state (this was the situation of the inmate in the instant case). Fourth, if an insane person has no legal guardian and no known kin within the state, the order shall be served on the custodial guardian of the inmate. Respondent's attorney particularly assails the provisions for notice in the first and fourth of these situations.

The essential elements of the constitutional guaranty of due process, in its procedural aspect, are notice and an opportunity to be heard or defend Before a competent tribunal in an orderly proceeding adapted to the nature of the case. 16 C.J.S., Constitutional Law, p. 1153, § 569, subsec. c (2); 12 Am.Jur. 267, § 573. A sterilization law which does not fairly and adequately afford the defective subject notice and assure him his day in court violates this guaranty. Davis v. Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2; Brewer v. Valk, 204 N.C. 186, 167 S.E. 638, 87 A.L.R. 237; and, to the same effect, see an advisory opinion of the supreme court of Alabama, In re Opinion of the Justices, 230 Ala. 543, 162 So. 123, at page 128, in which it was said: 'We think that the sterilization of a person is...