*1 al., et Plaintiffs PARKER Susan H. Respondents, RAMPTON, Governor Calvin L.
Honorable Ver- Utah, Honorable State of Romney,
non General B. Appellants. Utah, Defendants and
State of
No. 12494.
Supreme of Utah. Court
May 17, 1972.
Callister, opinion in an J., dissented C. Henriod, J., concurred. Dolowitz, County
David S. Salt Lake Services, Legal City, Bar Salt Lake respondents. CROCKETT, Justice: *2 allege: Plaintiffs parent that each the is children; of two that each has ster- ilization physicians, from their who have refused forebodings because of as to the effect of Sec. They U.C.A.1953. adjudication seek an declaring that this apply them, section does not prohib- to but its only persons sterilization toas whom we refer to herein the as “class of defec- tives.” subject Chap- The is dealt with ter U.C.A.1953, Title pro- vides procedures for of- followed ficials of certain state for institutions the of sterilization who are inmates therein or are afflicted with certain named defects. chapter
That commences: general— 64-10-1. Authorization in superintendent Whenever of Hospital, the Utah State or of the School, Training Utah State or of the School, State Industrial or warden of prison, opinion the state shall that it is for the best interests of the in- society any mates of or inmate person or any adjudged of Romney, Vernon Atty. Gen., B. idiot, imbecile, be insane, G. an an feeble- Davis, Blaine Topham, minded, Veri R. Asst. epileptic sexually At- or shall be tys. Gen., sterilized, Salt City, Lake for superintendent defendants such or warden appellants. performed is authorized to cause purpose surgeon ing operation capable operation
by some is, being sterilized, destroying any on of sterilization asexualization power procreate. person pro- inmate or vided, superintendent that such or war- part as : And of the decree complied den shall have first with THEREFORE, NOW, IT IS HERE- requirements chapter. this ORDERED, BY AND ADJUDGED to, statute referred Sec. DECREED: adjudication sought pro- [******] vides : That the defendants] [named enforcement officers all other law pro- power destruction
Unlawful Utah, of the state of should be and are create, felony. Except as authorized — hereby enforcing enjoined from chapter, person every this who 10-12, U.C.A.1953, visions of ex- forms, encourages, assists or other- 64— cept applied in- said statute state performance promotes wise patients inmates and stitutions and the operations chapter described in this therein. purpose power destroying for the species, human procreate unless problem In connection with *3 necessity, the same shall be a medical analyzing which in this statute there arises felony. guilty of a principle, kept is to be in mind essen findings having appropriate After made society, tial to a that each individual free in of
the trial court stated
its conclusions
his own course of
should be free to choose
law:
conduct,
consequences
take the
and to
legislative history
That the
and codifi-
thereof, except only
by
as restricted
.law.1
Act, Chapter
cation of the Sterilization
especially
This
true of matters
should be
relating
person.
recog
It is
to one’s own
Title
Annotated
10 of
Code
phases
in
1953, requires
nized of course that
various
of
that Section
conduct,
others,
with
interfere
construed
Annotated
Utah Code
society
of
or conflict
the interests
persons
with
only
apply
to institutionalised
generally,
must be some restrictions.
there
prohibit
does
a
said statute
and
e.,
regulations
But such
and restriction^ are
is not
institutionalized [i.
son who
determine;
legislature
they
and
for the
anyone
voluntarily undergo-
from
else]
authorities
there
Law 17 and
§
conduct
Criminal
of crime one’s
be convicted
To
unmistakably
pro
plainly
in cited.
and
must
Pigge,
by
statute,
see
hibited
making power is vested
2. Thatwhole law
703;
22 C.J.S.
79 Idaho
YI,
Legislature
Art.
in the
see
idiot,
imbecile, feeble-minded,
sane,
statutory
an
law
an
forth
should be set
clarity
certainty
that
and
with -sufficient
epileptic,”
whom
refer to
we
herein
ordinary intelligence
who desire
of
defectives,”
nothing
of
and
the “class
is said
obey
law can understand what the
expressly
in those statutes which refers
requirements are in order to conduct them-
anyone
sterilization of
else.
It thus seems
conformity
it.3 Correlated
selves in
with
language
reasonable
conclude that
foregoing
proposition
that
scrutiny here,
under
Section
is intended
any
uncertainty
any
there is
doubt or
as to
“operations
to mean that the
in
described
law,
origin, history
by
such restriction
its
chapter,”
is,
this
opera-
sterilization
purpose
and
can be
to determine
examined
tions
the “class of defectives” dealt
therein,
interpretation
application.4 with
must be done “as authorized
its correct
chapter”;
this
and that
is the failure
The statutes with
we are
con-
comply
requirements
with the
of that
cerned, Chapter
Title
referred to
chapter, by giving notice, having
hearing,
above,
only provisions
are the
in our law
making
determination of the facts
original
relating to sterilization. The
en-
institution,
board of each
that is
S.L.U.1925,
Chapter 82,
actment was
felony.
scribed as
was entitled:
aspect
Chapter
There is another
of said
prevent
procreation
An
toAct
bearing
problem
has a
10 which
on the
we
criminals, idiots,
habitual
epilep-
sexual
following
are concerned with. The section
tics,
providing
imbeciles and insane and
point
which is
in
Section
of focus
penalties
violation thereof.
case,
part:
this
states
“person”
Word
64-10-13.
defined—
it unnecessary
think
to set
We
forth in
“person”
word
when used
act,
detail the entire
but an examination of
chapter
in this
shall mean
individual
original
subsequent
act and all
amend-
adjudged
insane,
court
district
to be
ments,
sections,
comprising
now
fourteen
idiot,
imbecile, feeble-minded, or
an
14, inclusive, U.C.A.19S3,
64—10-1 to
re-
epileptic.
only
deal
with the
veals
matter
sterilization of inmates
state institu-
Setting forth the restrictive
definition
“adjudged
“person”
tions or
who
chapter
those
are
to be in-
word
as used
*4
Mason,
Constitution;
561;
Skaggs
Centers,
Drug
v.
v.
Utah
State
94
and
Inc.
330;
920,
38,
501,
Ashley,
P.2d
A.L.R.
Utah
78
117
26 Utah 2d
484 P.2d 723.
Christensen,
rel.
84
State ex
Stain v.
Smelting,
4.
v. United
Re-
Masich
States
185,
Utah
emphasizes that it is concerned with advised obtain opera- that if I do enumerated there- sterilization the "class defectives” tion, giving guilty projected of I felony idea is If in. meaning than “person” a broader word just quoted, that would re-
restrictive one they state applied Plaintiffs each that have uncertainty as in and confusion sult physicians, to their each of whom has unenforceable.5 to make the statute perform refused to the sterilization because might guilty of his that he fear of a that stated: For the reasons so, felony by attorney if he did as advised scrutiny, Sec. here under statute Snow, counsel for the Utah Medical John steriliza only subject of to the is directed plaintiffs’ Association. The affidavits are described defectives” the “class of tion of genuineness uncontradicted. Thus the U.C.A.1953, fact in Sec. physicians the fear of and their themselves deals statute which that there is no other they might subject render themselves sterilization, opinion that it is our with prosecution uncontested; stands right upon the places no restriction our law that is the basis the issue was such a sterilization of individuals presented to and decided the trial operation do desire. court.6 respect presented to the issue With justiciability was dealt matter jus whether there exists a dissent: Mayers petition- v. Bronson.7 The with parties, controversy ticiable between Mayers cause er had been ordered to show as effort we do see this action produc- concerning the in the district court “advisory opinion obtain an in a nonadver in a tax tion of documents and records sary action” in “the do not authority controversy. challenged He they might prosecuted assert that under punish power to of the court and its Sec. 64-10-12.” against contempt proceeding. As in such a plaintiff states: prohibition The affidavit of each the is- petition for writ undergo justiciable I a sterilization contro- That desire sue raised that no was right ap- operation versy ripened, and that the had acting directly, 439; Transport Reese, crime, whether Western Auto v. 'sion of guilty aiding abetting, are as P.2d 348. 104 Utah Johnson, principals. 2 above. v. 5. cases footnote See State See 488; and State P.2d Utah 2d genuineness Ervin, P.2d 372. of the fears ex- 22 Utah 2d As to correctly Appellant’s pressed, states in mind that brief be had U.O.A.1953, to our Utah there has been confusion under our law. 76-1— statute “has bee» the commis- all concerned with our
41
subject
remedy.
peal
adequate
This
in court.8 The
is
would be an
termined
admira
bly
through
treated
Professor Edwin
court entertained the writ
Borchard
Jus-
“Challenging
pointed
in an
on
Penal
tice
out that:
article
Stat
Wolfe
by Declaratory Action”
52
utes
Yale
difficulty in that
the
situa-
Journal,
points
that
Law
445. He
out
the.
petitioner
tion is that
would be re-
action
created
basis
such
is
re
quired
proceeding against
to let the
him
penal
of action the
striction
freedom
go
point,
ap-
on to such a
where
he
places upon plaintiffs
statute
and others.
pealed and lost he
have
would
to submit
supporting
A number of
authorities are cit
try
right
to
He would
out
sentence.
his
Thompson, Attorney
ed.
In Terrace v.
peril
at the
peti-
of confinement. The
Washington,
of the State of
263
General
is
required
put
tioner
himself
255,
U.S.
44 S.Ct.
68 L.Ed.
an in
position.
such
It is not the case of hav-
junction
was
to restrain
en
ing to
ordinary
submit to the
Washington
prohib
forcement
aof
.
. But where the matter involves
iting
persons ineligible
transfer of land to
a restraint
personal liberty
is
case
citizenship (Japanese).
In reference
different.
It
cannot
there be said
challenge
nonjusticiable
contro
that he
adequate
then has an
versy
Supreme
Court
U.S.
stated:
remedy by appeal.
require
...
To
rights
to test
him
out his
on
gamble
They [plaintiffs]
obliged
are not
plain
not furnish
adequate
or
does
-
take
prosecution,
the risk of
fines and
remedy at law. But if
.he
sues
imprisonment and
property
loss
in or-
prohibition
out a writ of
and is found to
der to
adjudication
secure an
of .their
wrong,
may
purge
he
still
himself
¡
rights.
compliance.
The article also
cites
cases of Dill v.
As
declaratory judgment,
the Hamilton,9
plaintiffs
seeking a declar-
very purpose of
provide
that statute was to
atory judgment that spiritualist seances do
securing
adjudication
a means for
with
public
not constitute a
gain
exhibition for
necessity
out
having
someone
to suf
required
were not
in-"advance to violate a
damage
fer
get
difficulty
or
into' serious
penal statute
a -condition of having
as:
he
rights
before
could seek to
his
de-
construed
of its validity determined; and
eommonly
prohibit
(19Q3) ;
understood to
volun-
1
Francisco L.Rev.
.U.San
tary
sterilization,-”
quotes
(1966) ;
several
174-75
L.Rev.
DePaul
tests n “Only
(1969) ;
Family
declare
three
that':
IV
L.Q.'.
'- n 'States, Connecticut,
Kansas
and Utah
prohibit voluntary
have statutes which
sterilization,”
citing,
Family
3 J.
L.
7. 100 Utah
Sage-Allen Company, pecially is Inc. where interest liberally respect interpreted problem statute should be wherein with similar applied purposes. its court stated: effectuate declaratory necessary What in such a justly these Certainly judgment action is that there be a defend- claim court declare ant whose interest is involved. This it regulation whether not the valid would seem is be true they may, violating actually without *6 legal is the General who chief officer of it, authoritatively apprised their be of State, duty charged the and with the of rights. representing its The interests.11 interests Attorney of State in the and the General been said above From what has sustaining validity the of enactments of the inescapably the clear that is legislative government branch of are rec- rights to proper have their a basis shown n Declaratory Act. ognized Judgment in the question the in determined. vis-a-vis statute 78-33-11, U.C.A.1953, provides Sec. policy and considera For the same reasons part: denied that deter should not be tions the they did not select Parties.— ... a statute
mination because alleged may be at- have chosen. . is invalid the else defendants someone involved, torney general es- shall served with question is and a vital Where 8. See C.J.S. Actions 9. 10. 119 Conn. merous A.L.R. there claratory bergh, stated plemental etc. v. etc., fore validity Hughes phy prior to Similar judgment 383 proper 1024, N.E.2d 540. 137 Neb. 1 actual 47 Hawaii case P.2d cited. Otagaki, in our 59 Cal.2d to determine 743. cases rulings in Tool Co. of allowed as 723, 726, judgment Anno. 10 in 129 A.L.R. violation, poultry-labeling 667, 673, decision; and also see supporting the selling See Chm. Declaratory Pacific v. 291 N.W. Annotation question A.L.R.3d 727 proper Dept. Agriculture, see Zeitlin Fielding, book; § obscenity 179 A. 18(8) 751, citing nu Meat Co. of Cal.Rptr. Declaratory statute 62, 64, proposition and cases 618. determine 297 N.Y. pornogra judgment following v. Arne et Ltd., Sup film, seq. 129 De be 11.The vided “The Article set board form this es ficial adviser States, ice over the district and duties of their sist discharge “(1) To “(5) “(7) [*****] forth in state in or directed state, Attorney by Constitution capacity or which the state To exercise VII, of the State When district law.” of his commission attend other prosecute all Sec. required offices, General shall be matters all duties.” is a or His duties as the county attorney of officers, courts of statutory says: supervisory county attorneys of or the Supreme by thereof party; pertaining governor, defend or . and U.C.A.1953: any officer, public duties are shall Court of the all caus- of United powers an of- to as- Utah, legal serv- copy proceeding and be of the entitled general imposed upon duties the Governor. be heard. VII, Under Article of the Section Con- stitution, charged duty he with the essentiality propriety As to the executed”; faithfully “see the laws are party, recog- as a Attorney General and “shall transact all executive business authority Declaratory Judgments, nized on government with the officers Anderson, in his text: states ” . His duties are further set out general legisla rule that where It is a in Sec. U.C.A.1953: attorney assailed, general tion is prescribed In addition to those party given must notice thereof Constitution, governor has the fol- way pleadings service lowing powers perform and must the fol- proceeding lacking him and where the lowing duties: respect, declaratory judgment in this (1) supervise shall He the official granted.12 cannot be conduct of all executive and ministerial with that idea is the case of In accord Jef officers. County Court et al. Tra ferson Fiscal (2) . see that all offices are
ger, Ky. 606, 189 S.W.2d filled, performed, and the duties thereof declaratory court stated that * * *. validity to the not be given because General had [******] Ethington
not been served. et al. v. (7) may require He the attorney gen- *7 al., 382, Wright 209, et 66 Ariz. eral any county to aid attorney in the validity indicates that when the of a stat discharge of his duties. Attorney challenged the
ute is
General However,
toas
the Governor there should
party.
should
a
See also
be
Gen
prejudice
be no
being
whatsoever in his
Cancer,”
“Tropic
eral
v. Book Named
party.
made a
In the case of Goldstein v.
11,
(3)
When
legal
in the controver-
interest
must have
parties
who have
shall be made
interest;
e.,
legally prqtectible
sy,
i.
anj'
would be af-
interest which
or claim
controversy
involved in the
the issue
(4)
declaration,
no
decla-
fected
judicial
ripe
determination.2
must be
rights
prejudice
shall
ration
proceeding.
prayed
action,
parties
to the
defendants
instant
sons
In the
dismissed
action
plaintiffs’
Kloman,
Maryland Naturopathic
County,
Assn. v.
3.
v. Salt Lake
Backman
(1962).
539-540
Md.
A.2d
AK granted and the court Plaintiffs enjoining the enforcement of
an order Sec.
64-10-12, except in accordance with in-
terpretation asserted. Under Secs. 67-7-4 U.C.A.19S3, attorney, the district 17-18-1, U.C.A.19S3, under
county attorney prose- are vested with the powers
cutorial in the enforcement of the
law of this State. Under Sec.
U.C.A.1953, public charged by officers challenged
law with the enforcement of a joined.5
statute must be of the trial court should
he reversed.
HENRIOD, J., concurs in the views ex-
pressed dissenting opinion of CAL-
LISTER, C. J.
NATIONAL AMERICAN LIFE INSUR- COMPANY,
ANCE Plaintiff and
Respondent,
Marvin Bainum, L. BAINUM and Nadine M. Appellants.
Defendants and
No. 12669.
Supreme Court of Utah.
May 31, 1972. Lee, 5. Wisconsin 4, supra; Maryland Naturopathic Pharmaceutical Assn. v. footnote Assn. v. Kloman, 3, supra. footnote