Moore's Sterilization, In re

• Decision Date: 29 January 1976
• Docket Number: No. 72,72
• Citation: 289 N.C. 95,221 S.E.2d 307
• Court: North Carolina Supreme Court
• Parties: In re STERILIZATION OF Joseph Lee MOORE.

Page 307

221 S.E.2d 307

289 N.C. 95

In re STERILIZATION OF Joseph Lee MOORE.

No. 72.

Supreme Court of North Carolina.

Jan. 29, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Isaac T. Avery, III, Raleigh, for the State, petitioner-appellant.

Hatfield & Allman by James W. Armentrout, Winston-Salem, for respondent-appellee.

Smith, Patterson, Follin, Curtis & James by Norman B. Smith, Greensboro, for North Carolina Civil Liberties Union Legal Foundation, Inc., amicus curiae, for respondent-appellee.

MOORE, Justice.

The only question before us on this appeal is the constitutionality of G.S. 35--36 through G.S. 35--50, inclusive.

The respondent attacks these statutes on the grounds that they are violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Law of the Land Clause of Article I, Section 19, of the North Carolina Constitution, both from procedural and substantive standpoints, that they deny the respondent equal protection of the law, are unconstitutionally vague and arbitrary, and provide for cruel and unusual punishment. The term 'law of the land' as used in Article I, Section 19, of the Constitution of North Carolina, is synonymous with 'due process of law' as used in the Fourteenth Amendment to the Federal Constitution. Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764 (1962).

The right of a state to sterilize retarded or insane persons was first upheld by the United States Supreme Court in Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927). In that case, in upholding a Virginia sterilization law, the Court held that the state may provide for the sterilization of a feebleminded inmate of a state institution where it is found that she is the probable potential parent of socially inadequate offspring likewise afflicted, and that she may be sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization. Since Buck, many states have passed sterilization laws. See Validity of Statutes Authorizing Asexualization or Sterilization of Criminals or Mental Defectives, Annot., 53 A.L.R.3d 960 (1973).

Most of these statutes have been declared constitutional. The grounds for declaring some of the statutes unconstitutional were lack of notice and a hearing, In Re Hendrickson, 12 Wash.2d 600, 123 P.2d 322 (1942), In Re Opinion of the Justices, 230 Ala. 543, 162 So. 123 (1935), Williams v. Smith, 190 Ind. 526, 131 N.E. 2 (1921); equal protection because limited to those imprisoned or committed, Haynes v. Lapeer, Circuit Judge, 201 Mich. 138, 166 N.W. 938 (1918), Smith v. Board of Examiners of Feeble-Minded, 85 N.J.Law 46, 88 A. 963 (1913), In Re Thomson, 103 Misc. 23, 169 N.Y.S. 638, Aff'd, 185 App.Div. 902, 171 N.Y.S. 1094 (1918), Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); or cruel and unusual punishment, Davis v. Berry, 216 F. 413 (S.D.Iowa 1914), Rev'd on other grounds, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441 (1917).

Our research does not disclose any case which holds that a state does not have the right to sterilize an insane or a retarded person if notice and hearing are provided, if it is applied equally to all persons, and if it is not prescribed as a punishment for a crime.

Respondent contends, however, that not all the requirements of procedural due process have been met in this case. A former sterilization statute was held unconstitutional by this Court on procedural grounds specifically that notice and a hearing were not provided. See Brewer v. Valk, 204 N.C. 186, 167 S.E. 638 (1933). The present statute, effective 1 January 1975, sought to correct the defects found in the former statute. G.S. 35--36 and G.S. 35--37 both provided that 'no operation authorized in this section shall be lawful unless and until the provisions of this Article shall first be complied with.' G.S. 35--41 provides that at least twenty days prior to a hearing on the petition in the district court, a copy of such petition must be served on the resident of the institution, patient, or noninstitutional individual and on the legal or natural guardian, guardian ad litem, or next of kin of the resident of the institution, patient, or noninstitutional individual. G.S. 35--44 provides for a hearing, if requested, before the judge of the district court. G.S. 35--44 also provides for an appeal from the judgment of the district court to the superior court for a trial De novo with the right upon the application of either party to be heard before a jury and the further right of appeal to the appellate courts for judicial review.

G.S. 35--45 provides:

'The person alleged to be subject to the provisions of this section shall have the right to counsel at all stages of the proceedings provided for herein. This person and all others served with the notification provided for in G.S. 35--41 shall be fully informed of the person's entitlement to counsel at the time of this service of notice. This information shall be given in language and in a manner calculated to insure, insofar as such is possible in view of the individual's capability to comprehend it, that the recipient understands the entitlement. Every person subject to be sterilized under this Article after the filing of the petition shall have counsel at every stage of the proceedings. If there is a conflict between the election of the person concerned and that of the other persons being served with notice, determination of the question of representation by counsel shall be made by the court having jurisdiction of the case. The person concerned may, in any instance, be represented by counsel retained by him. In cases of claimed indigency, a request for counsel shall be processed in the manner provided for in Subchapter IX, Chapter 7A, General Statutes of North Carolina.'

Despite the above specified safeguards, respondent still asserts that two important procedural rights have been omitted: (1) a provision that the State will provide the funds necessary to obtain a medical expert on behalf of the respondent and (2) the right of cross-examination. It is true that this statute does not require the State to pay a medical expert on behalf of the respondent. However, G.S. 7A--454 allows the court in its discretion to approve a fee for the services of an expert witness who testifies for an indigent person. We know of no constitutional mandate that requires more. See generally 'Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert,' Annot., 34 A.L.R.3d 1256 (1970). Accord, Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953); Watson v. Patterson, 358 F.2d 297 (10th Cir. 1966); United States ex rel. Huguley v. Martin, 325 F.Supp. 489 (N.D.Ga.1971); Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (1974); State v. Bourne, 283 So.2d 233 (La.1973); Utsler v. State, 84 S.D. 360, 171 N.W.2d 739 (1969); Utsler v. Erickson, 315 F.Supp. 480 (D.S.D.1970), Aff'd, 440 F.2d 140 (8th Cir. 1971), Cert. den., 404 U.S. 956, 92 S.Ct. 319, 30 L.Ed.2d 272 (1971); San Miguel v. McCarthy, 8 Ariz.App. 323, 446 P.2d 22 (1968); Houghtaling v. Commonwealth, 209 Va. 309, 163 S.E.2d 560 (1968), Cert. den., 394 U.S. 1021, 89 S.Ct. 1642, 23 L.Ed.2d 46 (1969). As aptly stated by the Supreme Court of Arizona in State v. Crose, 88 Ariz. 389, 357 P.2d 136 (1960):

'. . . (D)efendant contends that the right to have medical experts appointed by the court, at the state's expense, to examine him and assist his defense, is an integral and essential part of his constitutionally-guaranteed right to counsel. He has cited us no authority to support that position, and our own independent investigation has disclosed none. That he has the right to counsel . . . is not in doubt. . . . We know of nothing, however, either by constitution or by statute, requiring the state at its own expense to make available to the defendant, in addition to counsel, the full paraphernalia of defense. . . . We have no doubt that those who make the law could appropriately provide impecunious defendants with such assistance as was sought here, were it deemed practicable and in the public interest to do so. They have not done so. They were under no constitutional compulsion to do so. . . .'

The right of cross-examination is specifically provided by G.S. 35--43: 'In the event a hearing is requested, the district attorney . . . shall present the evidence for the petitioner. The respondent shall be entitled to examine the petitioner's witnesses and shall be entitled to present evidence in his own behalf.' (Emphasis added.) In order to assure this right, the only requirement is that the respondent, his guardian, attorney or other interested party object in writing to the sterilization. Since respondent is represented at every stage of the proceeding, we do not think this requirement is unduly burdensome.

We hold that the provisions of this statute far exceed the minimum requirements of procedural due process. Buck v. Bell, supra; Hagins v. Redevelopment Comm., 275 N.C. 90, 165 S.E.2d 490 (1969); In Re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953); Brewer v. Valk, supra.

Respondent further contends that the statutes in question deny him substantive due process. 'Due process' has a dual significance, as it pertains to procedure and substantive law. As to procedure, it means notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a competent and impartial tribunal having jurisdiction of the cause. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965). In substantive law, due process may be characterized as a standard of reasonableness and as such it is a limitation upon the exercise of the police power. 'Undoubtedly, the State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the legislature may enact laws, within...