IN THE COURT OF APPEALS OF NORTH CAROLINA
Nos. COA15-699-2, COA15-763-2, COA15-829-2 Filed: 6 June 2017
N.C. Industrial Commission, I.C. No. U00037
IN THE MATTER OF HUGHES, by and through V.H. INGRAM, Administratrix of the Estate of Hughes, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant-Appellant.
____________________________________
No. COA15-763-2
Filed: 6 June 2017
N.C. Industrial Commission, I.C. No. U00438
IN THE MATTER OF REDMOND, by and through L. NICHOLS, Administratrix of the Estate of Redmond, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant-Appellant.
No. COA15-829-2
N.C. Industrial Commission, No. U00750
IN THE MATTER OF SMITH, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant- Appellant.
Appeal by Claimant-Appellant Hughes, by and through V.H. Ingram,
Administratrix of the Estate of Hughes, from amended decision and order entered 28
April 2015 by the North Carolina Industrial Commission. Appeal by Claimant-
Appellant Redmond, by and through L. Nichols, Administratrix of the Estate of IN RE HUGHES; IN RE REDMOND; IN RE SMITH
Opinion of the Court
Redmond, from decision and order entered 27 April 2015 by the North Carolina
Industrial Commission. Appeal by Claimant-Appellant Smith from decision and
order entered 7 May 2015 by the North Carolina Industrial Commission. Heard
originally in the Court of Appeals 16 November 2015. Reversed and remanded by the
Supreme Court of North Carolina to the Court of Appeals for consideration of the
merits of Claimants’ constitutional challenge to N.C. Gen. Stat. § 143B-426.50(1).
Pressly, Thomas & Conley, PA, by Edwin A. Pressly; and UNC Center for Civil Rights, by Elizabeth McLaughlin Haddix, for Claimant-Appellants.
Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for North Carolina Department of Justice, Tort Claims Section.
McGEE, Chief Judge.
I. Facts and Procedural History
The General Assembly enacted the Eugenics Asexualization and Sterilization
Compensation Program (“the Compensation Program”), N.C. Gen. Stat. § 143B-
426.50 et seq., in 2013, in order to provide compensation to victims of the North
Carolina Eugenics laws. 2013 N.C. Sess. Laws 360, s. 6.18(a). Ms. Hughes
(“Hughes”), Ms. Redmond (“Redmond”), and Mr. Smith (“Smith”)1 (Hughes,
Redmond, and Smith together, “the Victims”) were all “sterilized involuntarily under
the authority of the Eugenics Board of North Carolina [‘Eugenics Board’] in
1 We avoid using the full names of these individuals in order to protect their anonymity.
-2- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
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).2 Hughes died in 1996,
Redmond died in 2010, and Smith died in 2006.
Because the North Carolina Industrial Commission (“Industrial Commission”)
concluded that the Victims were “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[,]”
they were all “qualified recipients” pursuant to the Compensation Program. N.C.
Gen. Stat. § 143B-426.50(5) (2013). However, N.C. Gen. Stat. § 143B-426.50(1)
limited which qualified recipients could become successful claimants as follows:
“Claimant. – An individual on whose behalf a claim is made for compensation as a
qualified recipient under this Part. An individual must be alive on June 30, 2013, in
order to be a claimant.” N.C. Gen. Stat. § 143B-426.50(1) (emphasis added).
Therefore, pursuant to the plain language of N.C. Gen. Stat. § 143B-426.50(1), the
Victims, all of whom died before 2013, are not considered “claimants” for the purposes
of the Compensation Program. The Compensation Program states that only “[a]
2 The Compensation Program, N.C. Gen. Stat. § 143B–426.50 et seq., “[e]xpired pursuant to Session Laws 2013-360, s. 6.18(g), as amended by Session Laws 2014-100, s. 6.13(e), effective June 20, 2015.” See N.C. Gen. Stat. § 143B-426.50 (2015). However, because these claims were timely initiated pursuant to the rules of the Compensation Program, we apply N.C. Gen. Stat. § 143B–426.50 et seq. (2013), as these statutes were still in effect at the time these claims were filed.
-3- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
claimant determined to be a qualified recipient under this Part shall receive
compensation[.]” N.C. Gen. Stat. § 143B-426.51(a) (2013) (emphasis added).
The estates of Hughes, Redmond, and Smith (“the Estates”) filed claims
pursuant to the Compensation Program. However, because the Victims all died
before 30 June 2013, they were determined not to meet the definition of “claimant”
under the Compensation Program, and the Estates’ claims were denied. The Estates
appealed the initial denial of their claims, and their claims were heard by deputy
commissioners. Following denials by the deputy commissioners, the Estates filed
appeals to the Full Commission. N.C. Gen. Stat. § 143B-426.53 (2013). Following
denial of their claims by the Full Commission, the Estates filed notices of appeal with
this Court, arguing that N.C. Gen. Stat. § 143B-426.50(1) was unconstitutional on its
face because it arbitrarily denied compensation to the heirs of some victims while
allowing compensation to others. This matter was heard originally in the Court of
Appeals 16 November 2015, and this Court filed opinions on 16 February 2016, with
one judge dissenting, in which we held that this Court lacked jurisdiction to address
the Estates’ facial constitutional challenge to N.C. Gen. Stat. § 143B-426.50(1). In re
Hughes, __ N.C. App. __, 785 S.E.2d 111 (2016); In re Redmond, __ N.C. App. __, 785
S.E.2d 111 (2016); In re Smith, __ N.C. App. __, 785 S.E.2d 111 (2016).
Upon review, our Supreme Court reversed and remanded to this Court for
consideration of the merits of Claimants’ constitutional challenge to subsection 143B-
-4- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
426.50(1). In re Hughes, __ N.C. __, 796 S.E.2d 784 (2017); In re Smith, __ N.C. __,
797 S.E.2d 264, (2017); In re Redmond, __ N.C. __, 797 S.E.2d 275 (2017). We now
address the merits of the Estates’ facial constitutional challenge to N.C. Gen. Stat. §
143B-426.50(1).
II. Analysis
On appeal, the Estates argue that N.C. Gen. Stat. § 143B-426.50(1) violates
the North Carolina and the United States constitutions by violating their rights to
equal protection under the law. We cannot agree.
A. History of the Compensation Program
“North Carolina’s eugenics program was unlike most in the nation, sterilizing
approximately 7,600 people over 45 years.” REP. PAUL STAM AND AMY O’NEAL, Eugenics
in North Carolina, 3 (2016), at http://paulstam.info/wp-
content/uploads/2016/10/Eugenics-in-North-Carolina-Updated-Oct.-2016.pdf. In
light of the history of eugenics in North Carolina,
North Carolina leaders realized that, through its Eugenics Board, the State invaded the lives and bodies of thousands of its citizens and forcibly took away their ability to choose whether to have children. Commissions and task forces debated whether to compensate the victims. Many in the General Assembly, including Speaker of the House Thom Tillis and House Majority Leader Paul Stam, hoped to accomplish this through the Eugenics Compensation Program (HB 947) during the 2012 Short Session. They wished “to make restitution for injustices suffered and unreasonable hardships endured by the asexualization or sterilizations of individuals at the direction of the State
-5- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
between 1933 and 1974.” The bill would have offered $50,000 in compensation to those who were sterilized under the N.C. Eugenics Board, but not to the families of victims who died before May 16, 2012. While HB 947 passed the House by a vote of 86 to 31 and funds were appropriated in the budgets of the House and Governor, the bill never made it to the Senate floor.
Id. at 4. One of the task forces mentioned above was created by executive order on 8
March 2011: “The Governor’s Task Force [‘Task Force’] to Determine the Method of
Compensation for Victims of North Carolina’s Eugenics Board[.]” N.C. Executive
Order No. 83 (2011). In this executive order, the Governor recognized that the
General Assembly had already “established panels to explore and make
recommendations for compensating and counseling persons who were sterilized under
the . . . Eugenics Board program[,]” and that “it is now appropriate to identify persons
who were sterilized by force or coercion and to explore and determine the possible
methods and forms of compensation to those persons.” Id. The first duty assigned to
the Task Force was to “[r]ecommend possible methods or forms of compensation to
those persons forcibly sterilized under the . . . Eugenics Board program.” Id.
(emphasis added). The Task Force submitted its “Final Report” to the Governor on
27 January 2012. THE GOVERNOR’S TASK FORCE TO DETERMINE THE METHOD OF
COMPENSATION FOR VICTIMS OF NORTH CAROLINA’S EUGENICS BOARD, Final Report to the
Governor of the State of North Carolina (2012), at
http://www.sterilizationvictims.nc.gov/documents/FinalReport-
-6- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
GovernorsEugenicsCompensationTaskForce.pdf. In its “Letter of Transmittal” of the
“Final Report,” the Task Force set forth its reasoning as follows:
Compensation for these survivors serves two purposes. No amount of money can adequately pay for the harm done to these citizens, but financial compensation and other services we recommend will nonetheless provide meaningful assistance. Compensation also serves a larger purpose for all of us who live in North Carolina and rely on a government that respects our rights and leaves us free to live the lives we choose. The compensation package we recommend sends a clear message that we in North Carolina are a people who pay for our mistakes and that we do not tolerate bureaucracies that trample on basic human rights.
....
We also want to clarify our thinking on whether compensation should cover the estates of all victims or be limited to living victims. We know that children of eugenics victims suffer from the hardships their parents endured, but we believe, nonetheless, that financial compensation should go only to living victims. Those who were sterilized suffered direct harm by the state and we would like the state to pay them for that pain.
Id. at 1-2.
In the conclusion of the Final Report, the Task Force acknowledged certain
limitations and injustices that were a necessary byproduct of achieving a workable
solution to the compensation issue:
In an effort to balance the need to compensate victims for the pain and hardships that they endured and the need to pass an overdue compensation plan this year, the Task Force made a difficult choice to limit compensation to living
-7- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
victims as defined in our recommendations. . . . .
The Task Force recognizes that some of the descendants of deceased victims have expressed great frustration that the state could exclude them from a final compensation plan. The Task Force members hope that the descendants will recognize the difficult task faced in developing these recommendations. The final recommendation prioritized a need to provide justice before time runs out to the remaining 1,500 to 2,000 victims who endured the direct, frontline pain and humiliation of this program.
Id. at 13. The Task Force defined “living victims,” and stated that once living victims
had been properly verified, they should receive a vested interest in their
compensation share:
The phrase “living victims” shall mean all living victims who have been verified by the Foundation or other state agency at the time legislation is passed as well as living victims verified by the Foundation moving forward.
Once these individuals have been properly verified as living victims, they should be deemed to have a vested interest in any compensation. Once they have this vested interest, if they should become deceased before any monetary sum is established and paid to them, then the vested interest becomes a part of their estate, and any compensation authorized by the legislature could be payable to their estate.
Id. at 11 (emphasis added).
Members of the General Assembly also recognized a difference between the
surviving relatives of deceased sterilization victims, “those ‘who were not the subject
of any clear and direct harm . . . any harm suffered [by heirs] would be vague and not
-8- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
individual in nature, but instead a generalized societal harm[,]’” and those
“thousands of forced sterilizations victims [who] are still living.” Eugenics in North
Carolina at 5 (citation omitted). Creation of the Compensation Program moved
forward in 2013:
While bills creating the Eugenics Compensation Program were introduced in the House and Senate Floor, the program was ultimately included in the budget. The General Assembly appropriated $10 million to be divided between the total number of qualified claimants. To qualify for compensation, sterilization victims must have been alive on June 30, 2013, provide adequate documentation of being involuntarily sterilized, and submit the appropriate form by June 30, 2014.
Eugenics in North Carolina at 6 (citations omitted).
The $10 million appropriated to cover compensation for the victims would
clearly not result in compensation approaching $50,000.00 if even 1,500 victims were
verified as claimants according to the method of payment established in N.C. Gen.
Stat. § 143B-426.51. Put simply, once all claims have been processed by the
Industrial Commission, and appeals from rejected claims finally decided, the $10
million appropriation will be divided equally among each successful claimant. N.C.
Gen. Stat. § 143B-426.51(a) (2014).3
We note that the Task Force estimated between 1,500 and 2,000 victims, out
3 The General Assembly has enacted legislation allowing some compensation to be disbursed to those individuals who have already been determined to be qualified recipient claimants. The remainder of the appropriated funds will be disbursed once all appeals have been decided. N.C. Gen. Stat. § 143B-426.51(a).
-9- IN RE HUGHES; IN RE REDMOND; IN RE SMITH
of an estimated 7,600 total victims, were still living in 2012. Had 2,000 surviving
victims been found to be proper claimants, each claimant’s share of the $10 million
would have been $5,000.00. Had the number of claimants been 1,500, each claimant’s
share would have been $6,667.00.4 Had all of the estimated 7,600 total victims – or
their estates – been compensated, each victim or estate would have received
approximately $1,300.00. However, only 780 claims were filed by the deadline,5 less
than 250 claims have been currently approved by the Industrial Commission, and
only a handful are still awaiting final resolution on appeal. Therefore, compensation
for each claimant could reach close to the $50,000.00 goal recommended by the Task
Force and originally requested in HB 947.
The General Assembly set forth its intent in creating the Compensation
Program in the preambles of the enacting bills of the successful legislation (HB 7 and
SB 464):
Whereas, it is the policy and intent of this State to provide compensation for certain individuals who were lawfully asexualized or sterilized 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; and
Whereas, the General Assembly recognizes that the State has no legal liability for these asexualization or sterilization procedures and that any applicable statutes of limitations have long since expired for the filing of any
4 See also Eugenics in North Carolina at 5, (“the cost of compensating 1,500 victims at $50,000 per victim would be $75 million”). 5 Eugenics in North Carolina at 7.
- 10 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
claims against the State for injuries caused; and
Whereas, the General Assembly wishes 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[.]
Now, therefore,
The General Assembly of North Carolina enacts:
SECTION 1. Article 9 of Chapter 143B of the General Statutes is amended by adding a new Part to read:
Part 30. Eugenics Asexualization and Sterilization Compensation Program.
2013 North Carolina Senate Bill 464; 2013 North Carolina House Bill 7.
Specifically, the General Assembly stated that the “policy and intent [was] to
provide compensation for certain individuals who were lawfully asexualized or
sterilized under the authority of the Eugenics Board of North Carolina[,]” and that
“the General Assembly wishe[d] 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[.]” Id. There is nothing in this
preamble indicating that the General Assembly intended to compensate the heirs of
individuals who had been sterilized under the authority of the Eugenics Board. In
fact, the Compensation Program contains both specific and inferred evidence that the
- 11 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
General Assembly intended to provide compensation to those identified sterilization
victims who were still living, and to exclude the heirs of those victims who had already
died. In short, the Compensation Program seems to have been designed in accordance
with the stated goals of certain members of the General Assembly, and the Final
Report of the Task Force, to provide restitution to the living survivors of involuntary
asexualization or sterilization by the Eugenics Board.
Much of the Compensation Program tracks the recommendations of lawmakers
and the Task Force. Most relevantly for the purposes of our review, the General
Assembly’s enactment of N.C. Gen. Stat. § 143B-426.50(1) explicitly limited
compensation to living victims – thus excluding heirs of deceased victims – in order
to maximize payment amounts to those who actually suffered involuntary
sterilization: “An individual must be alive on June 30, 2013, in order to be a claimant.”
N.C. Gen. Stat. § 143B-426.50(1). Further, the General Assembly mandated: ”If any
claimant shall die during the pendency of a claim, or after being determined to be a
qualified recipient, any payment shall be made to the estate of the decedent.” N.C.
Gen. Stat. § 143B-426.51(b).
The General Assembly provided compensation solely to living victims in order
to allow greater compensation to those individuals who personally suffered the pain
and indignity of involuntary sterilization. The General Assembly also provided that,
once a living victim was determined to be a valid claimant, or a potential claimant
- 12 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
properly initiated a claim, that claim would vest in the claimant or potential claimant.
Therefore, should that claimant or potential claimant die before final resolution
and/or compensation was completed, any appropriate compensation would be made
to the estate of the deceased claimant.
B. Equal Protection Law
As this Court has stated:
The Equal Protection Clause of Article I, Section 19 of the North Carolina Constitution and the Equal Protection Clause of Section 1 of the Fourteenth Amendment to the United States Constitution forbid North Carolina from denying any person the equal protection of the laws, and require that all persons similarly situated be treated alike.
Krueger v. N.C. Criminal Justice Educ. & Training Standards Comm’n, 230 N.C.
App. 293, 301, 750 S.E.2d 33, 40 (2013). The Estates argue that the requirement in
N.C. Gen. Stat. § 143B-426.50(1)
that a victim be alive on 30 June 2013 violates the equal protection guarantees of Article 1, § 19 of the N.C. Constitution and the Fourteenth Amendment of the U.S. Constitution. The government can show no valid state interest that is rationally served by the differential treatment of heirs of victims alive on 30 June 2013 and heirs of victims who had died by that date.
This Court has reviewed the requirements of analysis pursuant to the Equal
Protection Clause:
“The Equal Protection Clause of the Fourteenth Amendment provides that no State shall ‘deny to any person within its jurisdiction the equal protection of the
- 13 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
laws.’ The United States Supreme Court has ‘explained that the purpose of the [E]qual [P]rotection [C]lause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’” Thus, while the principle of substantive due process protects citizens from arbitrary or irrational laws and government policies, the right to equal protection guards against the government’s use of invidious classification schemes. “Of course, most laws differentiate in some fashion between classes of persons. The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.”
Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 202–03, 716 S.E.2d 646, 657–58
(2011) (citations omitted). Therefore,
“[t]o establish an equal protection violation, [Petitioner] must identify a class of similarly situated persons who are treated dissimilarly.” Thus, “[i]n addressing an equal protection challenge, we first identify the classes involved and determine whether they are similarly situated.”
For that reason, Petitioner was required to show as an integral part of her equal protection claim that similarly situated individuals were subjected to disparate treatment. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (stating that “[a] Plaintiff relying on disparate treatment evidence must show that she was similarly situated in all material respects to the individuals with whom she seeks to compare herself”)[.]
Wang, 216 N.C. App. at 204, 716 S.E.2d at 658 (citations omitted).
Generally, Equal Protection claims are subject to rational basis review:
- 14 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
The Equal Protection Clause is not violated merely because a statute classifies similarly situated persons differently, so long as there is a reasonable basis for the distinction. When a statute is challenged on equal protection grounds, it is subjected to a two-tiered analysis. . . . . If a statute does not burden the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class, the statute is analyzed under the second tier and the government need only show that the classification in the challenged statute has some rational basis. A statute survives analysis under this level if it bears some rational relationship to a conceivable, legitimate interest of government. Statutes subject to this level of review come before the Court with a presumption of constitutionality.
Town of Beech Mountain v. County of Watauga, 91 N.C. App. 87, 90-91, 370 S.E.2d
453, 454-55 (1988) (citations omitted). The Estates seem to acknowledge that their
Equal Protection claim is subject to “rational basis” review in stating: “Generally, a
law will survive the scrutiny if the distinction rationally furthers a legitimate state
purpose. However, courts have repeatedly struck down arbitrary classifications such
as that made by the living victim threshold in N.C.G.S. §146B-426.50 under the
rational basis standard.” (Citation omitted).6 Therefore, we must approach the
present matter presuming N.C. Gen. Stat. § 143B-426.50(1) is constitutional. Id. at
91, 370 S.E.2d at 455.
6 In the concluding paragraphs of the argument sections in the Estates’ briefs, they make a brief argument that “compelling state interest” review should be applied because the harm done, involuntary sterilization, was a “violation of fundamental constitutional rights[.]” We do not find the Estates’ argument for heightened review persuasive, and we apply “rational basis” review.
- 15 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
As the United States Supreme Court has held, it does not violate the Equal
Protection Clause to provide special benefits to certain citizens based upon sacrifices
they have made, voluntarily or involuntarily, in the furtherance of some
governmental objective. See Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 620, 86
L. Ed. 2d 487, __ (1985) (citation omitted) (special state benefits granted Vietnam
veterans was constitutional as a means to “compensate in some measure for the
disruption of a way of life . . . and to express gratitude[;]” however, conditioning
benefits on length of residency in the state does not survive equal protection review).7
The General Assembly’s decision to compensate the victims of our State’s eugenics
program does not run afoul of the Equal Protection Clause as a general matter.
Therefore, we must consider (1) whether the Estates were similarly situated with
other beneficiaries and, if so, (2) whether there is some rational relationship between
any disparate treatment and “a conceivable, legitimate interest of government.”
Beech Mountain, 91 N.C. App. at 90-91, 370 S.E.2d at 454-55 (citation omitted).
C. Similarly Situated
7 We further note that the Compensation Program is similar to the Civil Liberties Act of 1988, in which Congress established a fund to pay certain Americans who were interred during World War II. That Act limited eligibility to the American citizens of Japanese ancestry who were still living on the effective date of the Act. These criteria have been challenged, but have been consistently upheld. See, e.g., Jacobs v. Barr, 959 F.2d 313 (1992); Shibayama v. United States, 55 Fed. Cl. 720 (2002); Obadele v. United States, 52 Fed. Cl. 432 (2002).
- 16 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
The Estates focus on the heirs of victims, instead of the victims themselves, in
their Equal Protection analysis when they state: “The government can show no valid
state interest that is rationally served by the differential treatment of heirs of victims
alive on 30 June 2013 and heirs of victims who had died by that date.” However, the
“differential treatment” argued by the Estates is not between heirs of living victims
and heirs of deceased victims – it is between heirs of victims and the victims
themselves. Without discounting in any manner the injuries suffered by the families
of the victims due to the eugenics program, the estates of the victims are not similarly
situated to the actual victims themselves, who were forced to undergo involuntary
sterilization.
In an effort to circumvent this distinction, the Estates argue that it is the
estates of all victims who are similarly situated and, therefore, disparate treatment
between the estates of victims must pass rational basis review. However, the
intended beneficiaries of the Compensation Program are the living victims of the
eugenics program. The Estates’ focus on the estates of deceased victims is
inappropriate in the Equal Protection analysis before us, and we hold that the Estates
are not similarly situated to the intended beneficiaries of the Compensation Program.
The Estates’ Equal Protection challenge fails for this reason.
Further, assuming arguendo that the appropriate analysis is whether the
estates of all victims of the eugenics program are receiving disparate treatment, we
- 17 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
still hold that the Estates fail to pass the threshold required to show they were
similarly situated to the estates of victims who died after 30 June 2013, but before
receiving compensation due. There are thousands of estates of deceased victims, and
it is likely that some of these victims initially began dying long ago. The General
Assembly clearly intended to limit compensation to living victims, not victims long-
ago, or even recently, deceased.
As we do not think it requires probing constitutional analysis to determine that
deceased victims and living victims are not similarly situated for Confrontation
Clause purposes, we have little difficulty in finding that the heirs of the victims who
died before enactment of the Compensation Program are not similarly situated with
the heirs of the victims who lived to witness the enactment of the Compensation
Program, and who took the steps necessary to initiate claims for compensation.
The former had no expectation of compensation, even following the enactment
of the Compensation Program, as they were specifically therein excluded. The latter
were able to join their victim benefactors-to-be in anticipation that these living
victims were finally going to receive compensation.8 More importantly, because the
intent of the Compensation Program was to compensate the living victims
themselves, both monetarily and emotionally, these living victims all received the
reassurance and compensation of knowing that if their claims were ultimately
8In fact, heirs could file compensation claims on behalf of living victims. N.C. Gen. Stat. § 143B-426.50(1); N.C. Gen. Stat. § 143B-426.52(a) (2014).
- 18 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
successful, the compensation would be granted, even if the actual victims failed to
survive the full claims process. We hold that the Estates were not similarly situated
with any intended victim beneficiaries of the Compensation Program.
D. Rational Basis
Assuming, arguendo, that the Estates had survived the “similarly situated”
prong of an Equal Protection Clause analysis, we further hold that the challenged
legislation demonstrates a “rational relationship between the disparate treatment
and ‘a conceivable, legitimate interest of government.’” Beech Mountain, 91 N.C. App.
at 90-91, 370 S.E.2d at 454-55 (citation omitted).
The only accommodation made by the General Assembly in which a payout
pursuant to the Compensation Program would be made to the heirs of a deceased
victim who was involuntary sterilized under the authority of the Eugenics Board was
to the estates of those victims who were living at the time claims for compensation
could be filed on their behalves. At least one governmental interest supporting this
particular exception was identified in the Final Report:
The phrase “living victims” applies to those living victims who have been verified by the state at the time legislation is approved and any living victim who applies for compensation from then on. In fairness to living victims who have already been verified, should any die before receiving compensation, the payment would go to their heirs.
- 19 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
Final Report, at 2 (emphasis added). Stated differently, the purpose of the
Compensation Program was to monetarily compensate living victims only, not the
heirs of deceased victims. However, a living claimant would have the comfort of
knowing that his or her compensation would be awarded, even if that claimant pre-
deceased the payout. The comfort of that knowledge constituted a form of “restitution
for injustices suffered and unreasonable hardships endured by the asexualization or
sterilization of [those] individuals at the direction of the State between 1933 and
1974[.]” 2013 North Carolina Senate Bill 464; 2013 North Carolina House Bill 7.
Compensating heirs of victims who died before enactment of the Compensation
Program could afford no such comfort or “restitution” to those sterilization victims,
as they had never established any expectation of compensation. Such a scheme could
only benefit the heirs, not the victims of involuntary sterilization themselves. This
option was clearly considered and rejected by the General Assembly.
We readily identify several rational reasons for limiting compensation to living
victims: (1) addition of all heirs of deceased victims to the compensation pool could
have reduced the amount of compensation received by the actual victims to an
inconsequential amount; (2) the difficulty and cost of determining legitimate heirs of
deceased victims, some of whom had died more than eighty years earlier, would likely
be prohibitive; (3) the objective of the Compensation Program was not limited to
financially compensating living victims, but also included recognition of the
- 20 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
particular wrong that had been done to them and, therefore, the Compensation
Program was focused only upon those living victims who could still benefit from both
the financial compensation and the emotional vindication accompanying the State’s
recognition, in a concrete manner, of the wrongs it had done to them.
We entered our analysis with the presumption that N.C. Gen. Stat. § 143B-
426.50(1) is constitutional. Beech Mountain, 91 N.C. App. at 90-91, 370 S.E.2d at
454-55. We hold the Estates have failed to rebut this presumption because we hold
that the intent of the General Assembly to limit compensation to the living victims,
or, in rare instances, to the heirs of victims who had been living at the time
compensation through the Compensation Program became available to those victims,
as codified in N.C. Gen. Stat. § 143B-426.50(1) and related statutes, “bears some
rational relationship to a conceivable, legitimate interest of government.” Beech
Mountain, 91 N.C. App. at 91, 370 S.E.2d at 455 (citation omitted).
III. Conclusion
This Court reaches this determination following thorough review, and in no
manner means to suggest that the Estates in this matter, or the estates of other
victims excluded by the Compensation Program, are unworthy of recognition,
assistance, or compensation. We are limited to determining whether N.C. Gen. Stat.
§ 143B-426.50(1), on its face, violates the Equal Protection Clause rights of the
Estates by limiting compensation to victims whose rights in the Compensation
- 21 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH
Program had vested, and denying compensation to heirs of victims whose rights in
the Compensation Program never vested. We hold that the Estates have not
demonstrated they were similarly situated to other beneficiaries, and have not shown
that the legislation fails to bear a rational relationship to any legitimate
governmental interest. Therefore, we must reject the Estates’ arguments pursuant
to the constitutions of the United States and North Carolina.
Pursuant to the mandates of our Supreme Court set forth in In re Hughes, __
N.C. __, 796 S.E.2d 784 (2017); In re Smith, __ N.C. __, 797 S.E.2d 264, (2017); and
In re Redmond, __ N.C. __, 797 S.E.2d 275 (2017), we determine that N.C. Gen. Stat.
§ 143B-426.50(1), on its face, does not violate the Equal Protection Clause, and we
therefore remand to the Industrial Commission with instruction to deny the claims
of the Estates.
DECIDED AND REMANDED.
Judges DILLON and DAVIS concur.
- 22 -