Filed March 8, 1968.
1. Mentally Deficients, Sterilization of: Constitutional Law. Sections 83-601 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 or 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 83-605, 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. Mentally Deficients, Sterilization of. 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. Mentally Deficients, Sterilization of: Constitutional Law. Sections 83-501 to 83-508, R.R.S. 1943, are in all respects constitutional and enforceable. 9. Costs. 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.
Appeal from the district court for Gage County: WILLIAM F. COLWELL, Judge. Reversed and remanded.
Clarence A. H. Meyer, Attorney General, and Melvin K. Kammerlohr, for appellant.
Vincent L. Dowding and Luebs, Tracy Huebner, for appellees.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
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 plower.
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 feeble-mindedness, insanity, or 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, 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 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 common law 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 of her children.
The testimony of the two psychiatrists, the psychologist, and the general medical practitioner, all members of the board, can be summarized as follows: Gloria has an I.Q. of 71 and is in the lower two or three percent of the population in intelligence. All agreed that she was mentally deficient and probably capable of bearing children. After a review of Gloria's record and the observation of her, plus the I.Q. test, it was determined that she lacked the mental stability to handle social adjustment problems. Her attitude and personal feelings were considered. Consideration was given to the probable effect upon her of having more children, her minimal capacity to handle the responsibilities of parenthood, the possibility of producing mentally defective children, and the probability that added responsibilities of parenthood would in all likelihood handicap her potential rehabilitation.
The legislative authorization for the sterilization of mental defectives is a proper exercise of the police power, if constitutional requirements are met. In re Clayton, supra; Smith v. Command, 231 Mich. 409, 204 N.W. 140, 40 A. L. R. 515; Buck v. Bell, supra. The sterilization of a mentally defective female by salpingectomy is not a cruel and unusual punishment and in no sense is it a punishment for crime. In re Clayton, supra; State v. Troutman, 50 Idaho 673, 299 P. 668. The act that the sterilization statute is limited to mental defectives in the Beatrice State Home, the only state institution of its kind in the state, does not deny the equal protection of the law as class legislation. Buck v. Bell, supra. But the contention is here made that in Buck v. Bell, supra, persons in state institutions properly constitute a class for the purposes of this type of legislation, while in the instant case, the legislation is applicable only to one name state institution and the door is not left open for future institutions to enter the same class.
The history of the legislation and the consideration of statutes in pari materia become material in the resolution of the problem. The method and basis of admission of mentally deficient persons to the Beatrice State Home are uniform throughout the state. It is provided that the Nebraska institution for feeble-minded youth shall be known as the Beatrice State Home. 83-217, R.R.S. 1943. It is also provided by section 83-218, R.R.S. 1943, that the Beatrice State Home shall provide custodial care and humane treatment for those persons who are feeble-minded. Feeble-minded persons are defined by section 83-219, R.R.S. 1943, as: "* * * any person afflicted with mental defectiveness from birth or from early age, so pronounced that he is incapable of managing himself and his affairs and of subsisting by his own efforts, or of being taught to do so, or that he requires supervision, control and care for his own welfare, or for the welfare of others, or for the welfare of the community, and who cannot be classified as an insane person." The Beatrice State Home is the only institution to which such mentally defective persons may be committed under section 83-220, R.R.S. 1943, et seq. It is plain under the comprehensive plan adopted by the Legislature that but one such institution shall exist in this state and that the sterilization statutes are to apply only to the inmates of such institution. If the comprehensive plan of the Legislature be changed by the establishment of a second institution for the care of the mentally deficient, it would be necessary to change the classification of the institutions to which the sterilization statutes apply in order to avoid a denial of the equal protection of the law as class legislation. But the Legislature need not anticipate such a change that rests only within its power to bring about. We think the sterilization statutes are not unconstitutional as class legislation or as denying equal protection of the law under the peculiar facts and circumstances of this case.
It is contended that the words "mentally deficient" when applied to persons is so vague and indefinite as to make the sterilization statutes unconstitutional. The terms mentally deficient and mentally retarded are generally considered as synonymous terms having a generally accepted meaning. A statutory definition can be drawn from section 83-219, R.R.S. 1943, which meets all constitutional requirements. It is further contended that the sterilization statutes are void in that quasi-judicial powers have been unlawfully delegated to the board of examiners of mental deficient. There is no basis for this contention under our holding in Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620, 35 A. L. R. 2d 1003. See, also, In re Main, 162 Okla. 65, 19 P.2d 153.
It is contended here that the standards and guidelines under which the professional board of physicians is to act do not meet constitutional requirements. Two findings are essential before the board may act, a finding of mental deficiency of the patient and that in its opinion the patient is capable of bearing children. The statute then provides that if, in its opinion, on its psychiatric and medical findings, such patient should be sterilized as a condition for release, the board has authority to make such an order. But it is here contended that the statute is deficient in not requiring a finding that any children born to the patient would inherit a tendency to mental deficiency. Many of the earlier cases on the subject seem to have adopted that theory. But the advances in medical science have dispelled the theory that all mental defectives produce mental defectives and all normal persons do not. Such is not the case for unexplainable reasons which has brought about a change of thinking in the medical profession.
It is now the settled law that the Legislature, in the exercise of the police power, may make reasonable regulations consonant with the public welfare in dealing with mentally defective people. Heredity is not always the cause of mental deficiency. Environment is a factor that must be considered. It is an established fact that mental deficiency accelerates sexual impulses and any tendencies toward crime to a harmful degree. Many states have sterilization laws which have been upheld that are applied to certain types of crimes such as rape and incest. They have been applied to habitual criminals. They have been applied to mental defectives where transmission of mental weakness to offspring is not possible. The effect of mental deficiency upon the patient, children born to him, the community, and the general welfare, as well as the conditions leading to his commitment, are pertinent considerations in the area of sterilization. The question is a legislative one which is valid if constitutional due process is afforded and the rights of the patient protected. We point out that the sterilization statute before us is compulsory only when required before release from the Beatrice State Home. It is not compulsory in the sense that the patient is to be sterilized under all circumstances, since it is applicable only as a prerequisite to discharge or parole from the home. Remaining in the home makes the statute inapplicable. The fundamental issue is the reasonableness of the statute as an exercise of the police power. We think it reasonable.
In upholding a similar act, the Supreme Court of Kansas said: "The legislature provided a tribunal eminently competent to deal with the peculiar interests involved, and the procedure, is adapted to the nature of the subject. * * * The judicial tribunals are open to the inmate to test the validity of the law and the thirty-day period gives him reasonable time in which to institute proceedings to that end." State ex rel. Smith v. Schaffer, 126 Kan. 607, 270 P. 604. See, also, State v. Noll, 171 Neb. 831, 108 N.W.2d 108; State v. Madary, 178 Neb. 383, 133 N.W.2d 583.
Sterilization is a much misunderstood subject when applied to the mentally deficient. The public has a natural revulsion of feeling against sterilization of mental defectives even when it is clear that the public welfare requires it. Mental deficiency with its alarming results presents a social and economic problem of grave importance which gives rise to the exercise of the police power by the Legislature. The Beatrice State Home is full to overflowing with these unfortunates as is evidenced by the fact that Gloria was compelled to wait 10 days after commitment before being admitted to the home because of a lack of room. Thus far we have been endeavoring to demonstrate that the statute under consideration, measured by the purpose for which it was enacted and the conditions which warranted it, and justified by the findings of experts in biological science, is a proper and reasonable exercise of the police power. The opposition to such a statute as we have before us is largely based on the assumption that the operation is inhuman, unreasonable, and oppressive. The surgical operation of vasectomy on mentally defective males and salpingectomy on mentally defective females is a simple operation without pain or discomfort to the patient. It does not reduce his sex impulses nor limit his capacity to engage in sexual relations. It does no harm to the patient other than to eliminate his capacity to procreate.
We limit our holding to the facts of this case and the statute we have before us. We have here a case where the patient has not been cured, but why is eligible for release from the home if she is sterilized. She can remain in the home without being sterilized. Sterilization is only a condition for parole or discharge. It is compulsory only if she insists upon her release. We fail to see how the statute is in any manner unconstitutional on any grounds under these precise circumstances. It constitutes a reasonable invocation of the police power for the public welfare. We therefore hold sections 83-501 to 83-508, R.R.S. 1943, are constitutional. The evidence in this case is sufficient to sustain the findings of the board of examiners of mental deficient under the act if it be constitutional as we have found it to be.
The guardian of Gloria Cavitt has filed a cross-appeal in her behalf, asserting that the trial court erred in failing to appoint a guardian ad litem for her to carry on this litigation. The State contends that section 83-505, R.R.S. 1943, allows a fee of $25 to the guardian for the hearing before the board of examiners of mental deficient and that no other legal fees or expenses are provided for or allowable. We agree that the $25 allowance is for the appearance before the board at the hearing provided for in section 83-505, R.R.S. 1943.
The record shows that Gloria through her guardian applied to the district court for the appointment of a guardian ad litem which was denied. The record shows, however, that her guardian, a lawyer, represented her in the district court and in this court. She was ably represented and the failure of the trial court to appoint a guardian ad litem was without prejudice to the rights of Gloria, since the guardian carried out the functions of a guardian ad litem. The trial court denied the guardian's claim for the allowance of a guardian ad litem fee for legal services.
It is provided by section 7-113, R.R.S. 1943, that an attorney appointed as a guardian ad litem for an incompetent person shall be entitled to such compensation as the court shall deem reasonable. We think the trial court should have allowed a reasonable attorney's fee to the guardian for services rendered while acting in the capacity of guardian ad litem to be taxed as other costs. We can find no authority, and none has been cited, which authorizes the legal fees to be taxed against the State except as a part of the costs. The fact that Gloria appears to have no property out of which the fees of the de facto guardian ad litem can be paid in a noncriminal proceeding does not furnish any reason for imposing the liability on the State. We allow the guardian $500 legal fees for services rendered in this court to be taxed as costs. We remand this portion of the cause to the district court for the fixing of the guardian ad litem's fee in that court.
The judgment of the district court holding sections 83-504 and 83-505, R.R.S. 1943, unconstitutional is reversed. The cause is remanded for the purpose of the fixing of legal fees for services rendered by the guardian in the district court. The costs are taxed to the appellee, Gloria Cavitt.
REVERSED AND REMANDED.