In re: House ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-879
Filed: 16 February 2016
N.C. Industrial Commission, I.C. No. U00070
IN THE MATTER OF HOUSE, Claim for Compensation Under the North Carolina
Eugenics Asexualization and Sterilization Compensation Program, Claimant-
Appellant.
Appeal by Claimant from amended decision and order entered 11 May 2015 by
the North Carolina Industrial Commission. Heard in the Court of Appeals 30
November 2015.
The Bollinger Law Firm, PC, by Bobby L. Bollinger, Jr., for Claimant-
Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for
North Carolina Department of Justice, Tort Claims Section.
McGEE, Chief Judge.
The North Carolina Industrial Commission (“the Industrial Commission”)
found that Ms. House1 (“Claimant”) was involuntarily sterilized on 27 November
1974. The Industrial Commission based this finding in part on Claimant’s testimony
of 7 August 2014. Claimant testified that a Cleveland County Department of Social
Services (“DSS”) worker accompanied her to Cleveland Memorial Hospital in Shelby
to obtain an abortion and a tubal ligation. Claimant testified:
1 We avoid using the full name of Claimant in order to protect her anonymity.
IN RE HOUSE
Opinion of the Court
[The DSS worker] gave [the doctor] some papers to be
signed, and [the doctor] asked me if I wanted to have an
abortion. I said, “Yes, sir, but, no, sir,” and [the doctor]
asked me what I meant, and I told him that the [DSS]
worker – that I couldn’t keep my two daughters if I didn’t
have an abortion, and [the doctor] told [the DSS worker]
that he could not do it under those circumstances, and so –
which we went out in the hall. [The DSS worker] beat me
against the wall and told me again that if I did not have
this done, I would lose my two girls, and so she took me
home. . . . . And I went home and I cried all night, and I
went back the next day, and because the Department of
Social Services had custody of me, I had to have the surgery
done.
The Industrial Commission found:
4. Ms. House’s medical records that were included in the
record indicate that she was taken by “the Social Service
people” to Cleveland Memorial Hospital in Shelby, North
Carolina, in November 1974. Ms. House was nine weeks
pregnant at the time. The history and physical
examination note by Dr. W.J. Collins states that Ms. House
. . . was a “22 year old white married female . . . is pregnant
and desires interruption. She also requests sterilization.”
A subsequent medical note states that she underwent a
“vaginal tubal and therapeutic D & C.” This note also
separately describes the procedures as “therapeutic D & C,
bilateral partial salpingectomy.” The procedures took
place on 27 November 1974, resulting in the abortion of her
nine-week old, unborn child.
5. Ms. House testified that a social worker with the
Department of Social Services coerced her into having the
abortion and sterilization procedures. She testified that
the social worker threatened that she couldn’t keep her two
living daughters if she did not have the procedures. Ms.
House further testified that the social worker beat her
against a wall while threatening her with the loss of her
two daughters.
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IN RE HOUSE
Opinion of the Court
6. A sworn and notarized letter was submitted in this
matter by Barbara Neelands of Kings Mountain, North
Carolina, which was received by former Deputy
Commissioner Goodson and included in Ms. House’s file.
In this letter, Ms. Neelands states that Ms. House lived in
her household from 1973 to 1975. The remaining
substance of Ms. Neelands[’] letter basically confirms the
claims of Ms. House that a social worker . . . did threaten
Ms. House with losing her two daughters if she did not
undergo the abortion and sterilization procedures.
In 2013, the General Assembly enacted the Eugenics Asexualization and
Sterilization Compensation Program (“the Compensation Program”), N.C. Gen. Stat.
§ 143B-426.50 et seq., in order to provide compensation to individuals asexualized or
sterilized pursuant to the North Carolina eugenics laws. The Compensation Program
defined a “qualified recipient” under the Compensation Program as “[a]n individual
who was asexualized involuntarily or sterilized involuntarily under the authority of
the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public
Laws of 1933 or Chapter 221 of the Public Laws of 1937.” N.C. Gen. Stat. § 143B-
426.50(5) (2013).
Chapter 221 of the Public Laws of 1937 related to the temporary admission of
“patients” to State hospitals “for the purpose of sterilization,” and is not relevant to
the present appeal. 1937 N.C. Public Laws, ch. 221. Chapter 224 of the Public Laws
of 1933, as amended by Chapter 463 of the Public Laws of 1935, (“the Eugenics Act”),
stated in relevant part:
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IN RE HOUSE
Opinion of the Court
Sec. 2. It shall be the duty of the board of commissioners
of any county of North Carolina, at the public cost and
expense, to have one of the operations described in Section
1 of this act [asexualization or sterilization] performed
upon any mentally diseased, feeble-minded or epileptic
resident of the county . . . upon the request and petition of
the superintendent of public welfare or other similar public
official performing in whole or in part the functions of such
superintendent, or of the next of kin, or the legal guardian
of such mentally defective person: Provided, however, that
no operation described in this section shall be lawful unless
and until the provisions of this act shall be first complied
with.
Sec. 3. No operation under this act shall be performed by
other than a duly qualified and registered North Carolina
physician or surgeon, and by him only upon a written order
signed after complete compliance with the procedure
outlined in this act by the responsible executive head of the
institution or board, or the superintendent of public
welfare, or other similar official performing in whole or in
part the functions of such superintendent, or the next of
kin or legal guardian having custody or charge of the
feebleminded, mentally defective or epileptic inmate,
patient or non-institutional individual.
Sec. 4. . . . . If the person to be operated upon is not an
inmate of any . . . public institution, then the
superintendent of welfare or such other official performing
in whole or in part the functions of such superintendent of
the county of which said . . . non-institutional individual to
be sterilized is a resident, shall be the prosecutor. It shall
be the duty of such prosecutor promptly to institute
proceedings as provided by this act in any or all of the
following circumstances:
1. When in his opinion it is for the best interest of
the mental, moral or physical improvement of the . . . non-
institutional individual, that he or she be operated upon.
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IN RE HOUSE
Opinion of the Court
2. When in his opinion it is for the public good that
such . . . non-institutional individual be operated upon.
3. When in his opinion such . . . non-institutional
individual would be likely, unless operated upon, to
procreate a child or children who would have a tendency to
serious physical, mental, or nervous disease or deficiency.
4. When requested to do so in writing by the next of
kin or legal guardian of such . . . non-institutional
individual.
....
Sec. 5. There is hereby created the Eugenics Board of
North Carolina. All proceedings under this act shall be
begun before the said Eugenics Board. . . . .
....
Sec. 8. Proceedings under this act shall be instituted by
the petition of said petitioner to the Eugenics Board. Such
petition shall be in writing, signed by the petitioner and
duly verified by his affidavit to the best of his knowledge
and belief. It shall set forth the facts of the case and the
grounds of his opinion. The petition shall also contain a
statement of the mental and physical status of the patient
verified by the affidavit of at least one physician who has
had actual knowledge of the case[.] . . . . The prayer of said
petition shall be that an order be entered by said Board
authorizing the petitioner to perform, or to have performed
by some competent physician or surgeon . . . the operation
of sterilization or asexualization as specified in Section one
of this act which shall be best suited to the interests of the
said . . . patient or to the public good.
....
Sec. 10. The said Board at the time and place named in
said notice . . . shall proceed to hear and consider the said
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IN RE HOUSE
Opinion of the Court
petition and evidence offered in support of and against the
same[.] . . . . A stenographic transcript of the proceedings
at such hearings duly certified by the petitioner and the
. . . individual resident, or his guardian or next of kin, or
the solicitor, shall be made and preserved as part of the
records of the case.
Sec. 11. The said board may deny the prayer of the said
petition or if, in the judgment of the board, the case falls
within the intent and meaning of one of more of the
circumstances mentioned in Section 4 of this act, and an
operation of asexualization or sterilization seems to said
board to be for the best interest of the mental, moral or
physical improvement of the said . . . individual resident or
for the public good, it shall be the duty of the board to
approve said recommendation in whole or in part[.] . . . .
Sec. 12. . . . . If the . . . individual resident, or the next of
kin, legal guardian, solicitor of the county, and guardian
appointed as herein provided, after the said hearing but not
before, shall consent in writing to the operation as ordered
by the board, such operation shall take place at such time
as the said prosecutor petitioning shall designate.
....
Sec. 18. Records in all cases arising under this act shall be
filed permanently with the secretary of the said Eugenics
Board. . . . .
1933 N.C. Public Laws, ch. 224 (some emphasis added); 1935 N.C. Public Laws, ch.
463, § 2. Unlike other state eugenics programs, “North Carolina [was] the only state
that require[d] public officials, specifically directors of state institutions and county
directors of social services, to petition . . . for the sterilization of the mentally
disabled.” Joe Zumpano-Canto, Nonconsensual Sterilization of the Mentally Disabled
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IN RE HOUSE
Opinion of the Court
in North Carolina: An Ethics Critique of the Statutory Standard and Its Judicial
Interpretation, 13 Journal of Contemporary Health Law & Policy, Issue 1, 84 (1996)
(emphasis added).
Claimant was involuntarily sterilized on 27 November 1974. At that time,
there were two statutes authorizing sterilization of individuals in Claimant’s
position: (1) N.C. Gen. Stat. § 90-271 and (2) N.C. Gen. Stat. § 35-37.
N.C. Gen. Stat. § § 90-271, which is still in effect, authorized the voluntary
sterilization of adults or married juveniles, provided a written request was
made by such person prior to the performance of such
surgical operation, and provided, further, that prior to or
at the time of such request a full and reasonable medical
explanation is given by such physician or surgeon to such
person as to the meaning and consequences of such
operation[.]
N.C. Gen. Stat. § 90-271 (2013). This legislation was entitled, in part, “An Act to
Make it Clear that Physicians and Surgeons are Authorized to Perform Certain
Operations upon the Reproductive Organs of Certain Persons when Requested to do
so[.]” 1963 N.C. Sess. Laws, ch. 600. The purpose of that act, in part, was to provide
statutory protections for physicians who sterilized consenting adults. In order to
operate within the requirements of N.C. Gen. Stat. § 90-271, the consent had to be
informed, willing, and in writing. In the matter before us, there is no record evidence
of written consent for the operation performed. Further, the Industrial Commission
found as fact that the sterilization in this case was involuntary.
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IN RE HOUSE
Opinion of the Court
The only other statute that was in effect in 1974 authorizing sterilization of
adults in situations similar to that of Claimant was N.C. Gen. Stat. § 35-37. This
statute allowed the involuntary sterilization of non-institutionalized people in certain
circumstances. N.C. Gen. Stat. § 35-37 was the general statute successor to Section
2 of Chapter 224 of the Public Laws of 1933. At the time that Claimant was
involuntarily sterilized, N.C. Gen. Stat. § 35-37 had been amended to read as follows:
Operations on Mental Defectives Not in Institutions. It
shall be the duty of the board of commissioners of any
county of North Carolina, at the public cost and expense, to
have one of the operations described in § 35-36, performed
upon any mentally diseased or feeble-minded resident of
the county, not an inmate of any public institution, upon
the request and petition of the director of [social services]
or other similar public official performing in whole or in
part the functions of such director, or of the next of kin, or
the legal guardian of such mentally defective person:
Provided, however, that no operation described in this
Section shall be lawful unless and until the provisions of
this Article shall be first complied with.
N.C. Gen. Stat. § 35-37 (1973); 1967 N.C. Sess. Laws, ch. 138, § 2. N.C. Gen. Stat. §
35-36 was also amended in 1967 and defined the relevant “operations” as follows:
“[A]sexualization, or sterilization, performed upon any mentally diseased or feeble-
minded [individual], as may be considered best in the interest of the mental, moral,
or physical improvement of the [individual], or for the public good[.]” N.C. Gen. Stat.
§ 35-36 (1973); 1967 N.C. Sess. Laws, ch. 138, § 1. N.C. Gen. Stat. § 35-38 was
amended in 1967 to the following:
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IN RE HOUSE
Opinion of the Court
Restrictions on Such Operations. No operation under this
Article shall be performed by other than a duly qualified
and registered North Carolina physician or surgeon, and
by him only upon a written order signed after complete
compliance with the procedure outlined in this Article by
the responsible executive head of the institution or board,
or the director of social services, or other similar official
performing in whole or in part the functions of such
director, or the next of kin or legal guardian having custody
or charge of the feeble-minded or mentally defective
inmate, patient or non-institutional individual.
N.C. Gen. Stat. § 35-38 (1973); 1967 N.C. Sess. Laws 138, § 3. N.C. Gen. Stat. § 35-
39 stated in relevant part:
If the person to be operated upon is not an inmate of any
. . . public institution, then the director of social services or
such other official performing in whole or in part the
functions of such director of the county of which said
. . . non-institutional individual to be sterilized is a
resident, shall be the prosecutor.
It shall be the duty of such prosecutor promptly to institute
proceedings as provided by this Article in any of the
following circumstances:
1. When in his opinion it is for the best interest of the
mental, moral or physical improvement of the . . . non-
institutional individual, that he or she be operated
upon.
2. When in his opinion it is for the public good that such
. . . non-institutional individual be operated upon.
3. When in his opinion such . . . non-institutional
individual would be likely, unless operated upon, to
procreate a child or children who would have a tendency
to serious physical, mental, or nervous disease or
deficiency.
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IN RE HOUSE
Opinion of the Court
4. When requested to do so in writing by the next of kin
or legal guardian of such . . . non-institutional
individual.
N.C. Gen. Stat. § 35-39 (1973). According to N.C. Gen. Stat. § 35-43: “Proceedings
under this article shall be instituted by the petition of said petitioner to the Eugenics
[Board].2 Such petition shall be in writing, signed by the petitioner and duly verified
by his affidavit to the best of his knowledge and belief.” N.C. Gen. Stat. § 35-43(1973). Further, the Eugenics Act required that
[a] copy of said petition, duly certified by the Secretary of
Human Resources to be correct, must be served upon the
. . . individual resident, together with a notice in writing
signed by the Secretary of Human Resources designating
the time and place not less than 20 days before the
presentation of such petition to said Eugenics [Board]
when and where said [Board] will hear and pass upon such
petition.
N.C. Gen. Stat. § 35-44 (1973). Following the hearing before the Eugenics Board,
[t]he . . . [Board] may deny the prayer of the said petition
or if in the judgment of the [Board], the case falls within
the intent and meaning of one of more of the circumstances
mentioned in 35-39, and an operation of asexualization or
sterilization seems to said [Board] to be for the best interest
of the mental, moral or physical improvement of the said
. . . individual resident or for the public good, it shall be the
duty of the [Board] to approve said recommendation in
whole or in part[.]
2 The Eugenics Act was amended effective 1 July 1973 to replace the term “Eugenics Board”
with the term “Eugenics Commission.” 1973 N.C. Sess. Laws 476, § 133.3. For consistency, we shall
always refer to this entity as the “Eugenics Board.”
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IN RE HOUSE
Opinion of the Court
N.C. Gen. Stat. § 35-46 (1973). All records related to cases that arose pursuant to the
Act were required to be preserved permanently. N.C. Gen. Stat. § 35-53 (1973).
Because Claimant was involuntarily sterilized, the only legislation in effect at
the time authorizing Claimant’s sterilization was the Eugenics Act. As clearly stated
by the Eugenics Act, “no operation described in this Section shall be lawful unless
and until the provisions of this Article shall be first complied with.” N.C. Gen. Stat.
§ 35-37 (1973). However, there is no evidence that the provisions of the Eugenics Act
were complied with prior to the involuntary sterilization of Claimant. For example,
the record contains no petition to the Eugenics Board by anyone requesting the
involuntary sterilization of Claimant. There is no indication that any notice was
given or hearing conducted, or that any order authorizing Claimant’s sterilization
was ever entered. See N.C. Gen. Stat. §§ 35-37, 35-39, 35-43, 35-44, 35-45, 35-46, 35-
47 and 35-53 (1973). Though the Industrial Commission, implicitly at least, found
that Claimant’s involuntary sterilization was carried out at the instigation of DSS,
because DSS failed to follow the then existing law in pursuing Claimant’s involuntary
sterilization, we are left to determine whether Claimant is entitled to compensation
from the Compensation Program as “[a]n individual who was asexualized
involuntarily or sterilized involuntarily under the authority of the Eugenics Board of
North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter
221 of the Public Laws of 1937.” N.C. Gen. Stat. § 143B-426.50(5).
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IN RE HOUSE
Opinion of the Court
Although it is possible that members of the General Assembly were unaware
at the time that N.C. Gen. Stat. § 143B-426.50(5) was enacted that many involuntary
sterilizations had been conducted outside the parameters of the Eugenics Act – and
thus had been conducted without legal authority – we are constrained to apply the
plain meaning of N.C. Gen. Stat. § 143B-426.50(5) unless we determine its language
is ambiguous. We hold the language of N.C. Gen. Stat. § 143B-426.50(5) is clear and
without ambiguity.
Statutory interpretation properly begins with an
examination of the plain words of the statute. The
legislative purpose of a statute is first ascertained by
examining the statute’s plain language. “When the
language of a statute is clear and unambiguous, there is no
room for judicial construction, and the courts must give it
its plain and definite meaning.”
Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992).
We cannot make any holding contrary to the clear meaning of N.C. Gen. Stat. § 143B-
426.50(5). We must consider the words of the statute as they appear. N.C. Gen. Stat.
§ 143B-426.50(5) sets forth two requirements that must be proven before a claimant
may be considered a qualified recipient: (1) the claimant must have been
involuntarily sterilized “under the authority of the Eugenics Board of North
Carolina,” and (2) the claimant must have been involuntarily sterilized in accordance
with the procedures as set forth in “Chapter 224 of the Public Laws of 1933 or Chapter
221 of the Public Laws of 1937.” N.C. Gen. Stat. § 143B-426.50(5). In the present
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Opinion of the Court
case, unfortunately, Claimant cannot show that either of these requirements has
been met.
There is no record evidence that the Eugenics Board was ever informed of
Claimant’s involuntary sterilization, nor that it was consulted in the matter in any
way. Because the language of N.C. Gen. Stat. § 143B-426.50(5) is clear, “there is no
room for judicial construction, and [this Court] must give it its plain and definite
meaning.” Correll, 332 N.C. at 144, 418 S.E.2d at 235. Further, all the evidence in
this matter clearly demonstrates that Claimant’s involuntary sterilization was
performed without adherence to the requirements set forth in “Chapter 224 of the
Public Laws of 1933 or Chapter 221 of the Public Laws of 1937.” N.C. Gen. Stat. §
143B-426.50(5). Therefore, we must affirm.
AFFIRMED.
Judges DILLON and DAVIS concur.
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