Garcia v. State Department of Institutions

36 Cal.App.2d 152 (1939) SARA ROSAS GARCIA, Petitioner,

v.

STATE DEPARTMENT OF INSTITUTIONS et al., Respondents.

Civ. No. 12533. California Court of Appeals. Second Appellate District, Division One.

December 18, 1939. David C. Marcus for Petitioner.

York, P. J.

[1] The petition for a writ of prohibition is denied upon the ground that it does not state facts sufficient to justify this court in issuing its writ as prayed.

Doran, J., concurred.

White, J.,

Dissenting.

I dissent. Section 6624 of the Welfare and Institutions Code provides that when a person has been lawfully committed to any state hospital who is afflicted with or suffers from certain mental and physical ailments, "before any such person is released or discharged from a state hospital, the State Department of Institutions may, in its discretion, cause such person to be sterilized".

It seems to me that the legislature is without authority to authorize a purely administrative board to deprive a person of the right of procreation without the opportunity of having the finality of such action passed upon by a court of law, and that in so doing there is probable violation of the due process clause of the federal Constitution. It is to be noted that without notice to the inmate upon whom the operation is to be performed and without notice to his next of kin the State Department of Institutions is clothed with absolute unrestricted power to sterilize. In my opinion, the grant of such power should be accompanied by requirements of notice and of hearing at which the inmate might be afforded an opportunity [154] to defend against the proposed operation. To clothe legislative agencies with this plenary power, withholding as it does any opportunity for a hearing or any opportunity for recourse to the courts, to my mind partakes of the essence of slavery and outrages constitutional guaranties. As was said by our Supreme Court in Drummey v. State Board of Funeral Directors and Embalmers, 13 Cal.2d 75 [87 PaCal.2d 848]: