In Re the Guardianship of Hayes , 93 Wash. 2d 228 ( 1980 )

Rosellini, J.

(dissenting) — In the exercise of the police power, the legislature has provided for sterilization of certain criminals, evidently upon the mistaken belief that the tendencies exhibited by such criminals are inheritable (RCW 9.92.100). Today, the court has enacted its own statute, providing for the sterilization of children upon the petition of parents.

The majority recognizes that it has no real statutory authority to act in this area. It cites no authority supporting the proposition that the ordering of sterilization of human beings is among the inherent powers reserved to the courts. As stated in 20 Am. Jur. 2d Courts § 78 (1965), the inherent powers of a court do not increase its jurisdiction; they are limited to such powers as are essential to the existence of the court and the orderly and efficient exercise of its jurisdiction. As is made clear in section 79 of that encyclopedia, the powers pertain to matters procedural rather than substantive. They do not include the power to determine what laws will best serve the public welfare.

The majority's position, as I read it, is simply that the court has power to grant relief in any case that comes before it, whether or not that relief is authorized by constitution, statute, or principle of common law. If a complaint is filed, the majority indicates, the court can give a remedy. The need to state a claim "upon which relief can be granted" is eliminated from the requirements for maintaining an action.

Recognizing, fortunately, that the area in which it legislates today is a complex one, the majority has found it necessary to promulgate a number of rules regarding the burden of proof, assuring that when an action is brought under this law, the trial may be lengthy and expensive.

Not only because the courts lack inherent power to order such invasions of human privacy, but because the undertaking is of such grave consequence and error so irreversible, wise courts have acknowledged that only the people's representatives can rightly determine whether and under what circumstances such measures are desirable and necessary.

The majority of courts in the United States which have considered the question have held that, in the absence of specific statutory authorization, courts are not empowered to order sterilization of incompetents. In an annotation entitled Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority, 74 A.L.R.3d 1210, 1213 (1976), Thomas R. Trenkner says:

Rejecting contentions that the jurisdiction to permit such sterilizations was impliedly conferred by general statutes empowering the courts to act on the behalf of infants, mental defectives, and other incompetent persons, or by statutes investing courts with general equitable powers, these courts seem to have generally taken the view, explicitly stated in one case, that an order for the compulsory sterilization of a mental defective, whatever may be the merits of the particular case, irreversibly denies to that human being the fundamental right to bear or beget children and thus is too awesome a power to be inferred from general statutory provisions, but rather should only be conferred by specific statutory authority which provides guidelines and adequate legal safeguards determined by the people's elected representatives to be necessary after full consideration of the constitutional rights of the individual and the general welfare of the people.

(Footnotes omitted.) The public policy of the State of Washington supports this view.

The legislature at one time provided for sterilization of certain mentally deficient persons. Laws of 1921, ch. 53, p. 162. In In re Hendrickson, 12 Wn.2d 600, 123 P.2d 322 (1942), this court, while recognizing that the enactment of a sterilization statute was within the police power of the legislature, held the act unconstitutional because of procedural defects. Since that time the legislature has not seen fit to enact another law authorizing such sterilizations, even though it has provided for sterilization of certain other types of individuals. This means that the legislature has not seen fit to vest the judiciary with the jurisdiction to order sterilization. The lack of legislative action indicates that sterilization of mentally deficient persons has not found sufficient public support to convince the legislative body of its efficacy.

Obviously, since such legislation lies in the sphere of the police power, it is not within the inherent power of the courts, and the legislature, until today, had every right to assume that the courts would not presume to write their own law upon the subject.

The majority apparently assumes that sterilization is a matter of indifference to the person upon whom it is performed, provided, of course, he is in fact retarded. Upon this subject, Kindregan, in Sixty Years of Compulsory Eugenic Sterilization: "Three Generations of Imbeciles" and the Constitution of the United States, 43 Chi.-Kent L. Rev. 123, 139-40 (1966), says:

The third basic principle of CES [compulsory eugenic sterilization] is that sterilization is not usually felt to be a detriment by the defective person. Mr. Justice Holmes expressed this belief when he wrote that the loss of reproductive power is "....often not felt to be [a sacrifice] ... by those concerned." This may be true in the case of many imbeciles, idiots and persons prone to sexual perversion. But it can hardly be generalized of those suffering from feeblemindedness and epilepsy. One recent study indicated that many mental defectives who were forcibly sterilized by the state of California feel resentment. Others are aware that eugenic sterilization is contrary to the teaching of their religion. Some women who are capable of caring for the children of others, but have been forced to undergo CES, can only be described as bitter. The state has precluded their becoming mothers on the basis of "....a knowledge of the laws of heredity far beyond the reaches yet attained by humble scientists."

Any analysis of CES must ultimately reach this fundamental question: is the basis for this state action so apparent and reasonable that the legislature can authorize a substantial intrusion into the body of a human being? Mr. Justice Douglas has stated the seriousness of the answer to that question:

....We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the existence and survival of the race. There is no redemption for the individual whom the law touches ... he is forever deprived of a basic liberty.

(Footnotes omitted.)

The majority's reliance on In re Hudson, 13 Wn.2d 673, 126 P.2d 765 (1942) is misplaced. In that case, the Superior Court had ordered the amputation of a child's enormously enlarged arm. In a much criticized decision, this court reversed, finding the lower court lacked jurisdiction because the parents were not shown to have neglected the child within the meaning of the statute giving the courts power to take custody of dependent children. This decision was reached in spite of the fact that it was established by competent medical testimony that the operation was imperative for the child's physical and mental health.

Thus, what this court had to say in that case about the powers of the Superior Court under the then juvenile court act (Rem. Rev. Stat. § 1987) was dictum. However, I have no quarrel with it, since it merely recognized the court's power to order medical care for a dependent child. That is not the question here. This action was not brought under that statute, and had it been, the question before us would be, Did the legislature, when it authorized the court to make "any order, which in the judgment of the court, would promote the child's health and welfare" (Rem. Rev. Stat. § 1987-10), intend to give it power to order sterilization? I rather doubt that even the majority here would be inclined to give the language such a liberal interpretation. Observing the recitation of relevant facts in the majority opinion, it would appear that the focal point of concern is the welfare of the parents more than the health and welfare of the child. Their welfare may indeed be a legitimate social concern, but it is for the legislature to determine whether the public interest warrants the protection of parents from the anxieties, stresses and responsibilities thrust upon them in those circumstances, as well as whether the adverse effect of pregnancies on retarded or mentally deficient children is a problem which warrants a court intervention.

An annotation at 74 A.L.R.3d 1224 (1976) reveals that to date no court has held that a parent has the power to order sterilization of his child, whether a minor or adult.

Denying a declaratory judgment that a parent had such right, the Indiana Court of Appeals said, in A.L. v. G.R.H., 163 Ind. App. 636, 638, 325 N.E.2d 501, 74 A.L.R.3d 1220 (1975), cert. denied, 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669 (1976):

In considering the facts at hand, it should be first noted that we are not dealing with a legislative enactment permitting sterilizations without consent where certain conditions exist.

Secondly, the facts do not bring the case within the framework of those decisions holding either that the parents may consent on behalf of the child to medical services necessary for the child, or where the state may intervene over the parents' wishes to rescue the child from parental neglect or to save its life.

Permanent sterilization as here proposed is a different matter. Its desirability emanates not from any life saving necessities. Rather, its sole purpose is to prevent the capability of fathering children.

We believe the common law does not invest parents with such power over their children even though they sincerely believe the child's adulthood would benefit therefrom. This result has been reached most recently in In Interest of M.K.R. (Mo. 1974), 515 S.W.2d 467, and In re Kemp's Estate (1974) 43 Cal. App. 3d 758, 118 Cal. Rptr. 64, where the courts of Missouri and California held that their respective juvenile statutes making general provision for the welfare of children were insufficient to confer jurisdiction to authorize the sterilization of retarded girls in the absence of specific sterilization legislation.

(Footnotes and citations omitted.)

The United States Supreme Court has not held that a state court has inherent power to order sterilization. In Stump v. Sparkman, 435 U.S. 349, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978), cited by the majority, the issue was whether a judge who had ordered a minor girl sterilized was immune from liability to that girl when she reached majority, married, and discovered the author of her inability to have children. The court held that judges of the courts of superior or general jurisdiction are not liable in a civil action for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly and even though grave procedural errors occur.

The Supreme Court majority was obviously intent upon protecting the judge's immunity. The opinion certainly does not stand as an endorsement of judicially ordered sterilizations but rather as an uncompromising assertion of such immunity. I would say that it also stands as an ominous warning of how easily the asserted power to order sterilization can be mistakenly exercised.

In 1922, a great number of states adopted sterilization laws based upon the eugenic theory that human defectives could be eliminated and this would result in the improvement of the human race. The fallacy of this assumption has been demonstrated by geneticists. See Kindregan, Sixty Years of Compulsory Eugenic Sterilization: "Three Generations of Imbeciles" and the Constitution of the United States, 43 Chi.-Kent L. Rev. 123 (1966). According to his article, the overwhelming weight of scientific opinion is that defects such as retardation are not demonstrably inheritable in the case of an individual defective person. He further points out that 89 percent of all feebleminded children are born to normal parents.

The majority assumes that it is established that sterilization may be beneficial to society. And yet scientific studies cast grave doubts upon the correctness of this assumption. In a Note, Eugenic Sterilization — A Scientific Analysis, 46 Denver L.J. 631, 633-34 (1969), the author says:

[T]he fact that some sterilizations continue to be performed and that, in any event, the threat remains of possible sterilization being imposed, even though there is questionable scientific value in such procedures, makes this a topic of continuing timeliness and interest. Numerous legal, medical, and sociological reviews have been published on the subject, most of them unfavorable in their appraisal. The basic criticisms have been that eugenic sterilization does not accomplish its stated objective of "human betterment," and, at the same time, it interferes with important freedoms either expressly guaranteed by the United States Constitution or brought within its ambit by judicial construction.

(Footnotes omitted.)

My great concern is that the courts do not become "an imperial judiciary," a phrase coined, I believe, by Nathan Glaser. In his book Power, written late in his career, Adolph Berle spoke of the United States Supreme Court as a benevolent dictatorship. And Phillip Kurland has often traced the Supreme Court's wandering in the political thicket with no compass for a guide, save its own subjective fancies.

The rule of law is not well served by handing unrestricted policy-making power to a shifting majority of as few as five whose judgment, as Justice Jackson would say, is not final because it is infallible, but infallible because it is final.

I would affirm the judgment of dismissal.

Wright and Brachtenbach, JJ., concur with Rosellini, J.