NCAJ Members Assist Eugenics Victims Pro Bono

December 15, 2015   |   Bob Bollinger

Lawyers have a professional obligation to donate their services occasionally to legal activities that are rendered pro bono publico – that is a Latin phrase meaning “uncompensated services provided in the public good.”   Several trial lawyers in North Carolina have donated their services to help victims of the state’s eugenics sterilization policy.

From 1933 until approximately 1974, North Carolina pursued a policy of eugenics sterilization.   Generally speaking, any person in the state who was “feeble-minded, mentally diseased, epileptic” or whose “mental, moral or physical improvement” could be furthered by sterilization, or who might produce a child “who would have a tendency to serious physical, mental or nervous disease or deficiency,” would be a proper target of this involuntary sterilization policy.   In 1933, the General Assembly passed P.L. 1933, Sec. 224, which established the “Eugenics Board” to provide a modicum of due process for the targets of the sterilization program.   This public law also established an affirmative duty on the part of each county’s Board of Commissioners, and each county’s Superintendent of Welfare, to go out into their local community and find all of the people under their jurisdiction who “should” be sterilized pursuant to this public policy.  The 1933 Act required these public officials to get it done by filing a petition for sterilization with the Eugenics Board.   The Board would hold a hearing and could order or deny the request for sterilization.  Once ordered, the operation was performed at public expense in the county from which the petition originated.   There were apparently thousands of North Carolinians involuntarily sterilized pursuant to these policies between 1933 and 1974, when the Eugenics Board was finally disbanded.

In 2013, the NC General Assembly did the right thing—it enacted a compensation program “to make restitution for injustices suffered and unreasonable hardships endured by the asexualization or sterilization of individuals at the direction of the State between 1933 and 1974.”  The legislature set aside $10,000,000 to be paid per capita to eligible claimants.   Unfortunately, the legislators were unaware that apparently, county welfare departments had involuntarily sterilized some citizens without going through the mandatory Eugenics Board petition process.    In addition, some sterilization victims were left out of the compensation package due to an arbitrary qualification date established by the legislature.

The Industrial Commission was given the responsibility of reviewing the applications and determining who was a “qualified beneficiary” under the 2013 compensation law.  Anyone who was denied administratively could request a hearing in front of the Commission and appeal an adverse decision to the Full Commission, and then to the appellate division.   Approximately 850 claims were filed with the Commission.

As of November 2015, approximately 250 claims had been determined to be valid, and a first installment of compensation has been paid to those individuals.  However, approximately 19 denied claims remained in litigation, either at the Commission or the Court of Appeals.

The denied claims fell into two categories:   Some individuals could prove that they had been involuntarily sterilized for eugenics reasons at the behest of public officials, such as county “welfare department” or social services case workers, but no documents pertaining to them were found in the Eugenics Board archives held by the State.  The Commission denied these claims because there was “insufficient evidence” to show that the victims had been sterilized by order of the Eugenics Board, which the Commission viewed as an essential element of a claim.   Other denied claimants had clearly been sterilized through the Eugenics Board process and their paperwork survived in the archives, but they did not personally survive to the “living victim” threshold cut-off date established by the 2013 legislation.

In 2013, it came to the attention of Kevin Bunn (then Chair of the Workers’ Compensation section of the NCAJ) that numerous Eugenics claimants needed to litigate their administratively denied claims at the Industrial Commission.   The Workers’ Compensation section members all practiced daily before the Industrial Commission, so Bunn asked his section members to help out.  As a result, members of the section volunteered to represent these claimants pro bono on the denied, disputed claims for compensation.

Lawyers from the NCAJ who handled claims before the Commission included Elizabeth McLaughlin Haddix of Chapel Hill, Leslie Wickham and Valerie Johnson of Durham, Marva McKinnon and Ed Pressly of Statesville, Bob Bollinger of Charlotte and Martza McCarthy of Morehead City.    Elizabeth Haddix of the UNC School of Law’s Center for Civil Rights represented claimants from the very beginning of the claim application process and coordinated the pro bono efforts of the other NCAJ attorneys.   This group of lawyers litigated approximately 18 denied claims all the way through the Industrial Commission and are currently representing 18 claimants on individual appeals pending at the NC Court of Appeals.   On November 18, Elizabeth Haddix and Ed Pressly presented an oral argument to the Court in three “living victim threshold” cases, and on November 30, Bob Bollinger presented an oral argument in a “no documents from the Eugenics Board archives” claim.

The stories of the victims are absolutely compelling—-the November 30 argument involved a 26-year-old mother with no financial resources who was sterilized decades ago under duress applied by a county social worker.  The woman and her two young children were receiving welfare benefits, and the social worker threatened to take away her children if she did not “consent” to a sterilization procedure.   The Industrial Commission found that she was involuntarily sterilized, but that she was not eligible to receive compensation because there was no order from the Eugenics Board.  The question for the Court of Appeals is whether the lack of an order from the Board is dispositive, when the involuntary sterilization could only have been lawful under the 1933 Eugenics Sterilization Act.

These trial lawyers collectively have invested hundreds of hours of uncompensated professional time into this effort to bring justice to each person who was involuntarily sterilized by the State pursuant to its eugenics sterilization public policy.

Blog post author Bob Bollinger practices law at the Bollinger Law Firm, PC.  The Bollinger Law Firm, PC, is based in Charlotte, but takes workers’ compensation cases across North Carolina. Founded in 1999, the firm has a strong reputation as a law firm of advocates for injured and disabled people.