# Petition for Writ of Certiorari — Cauer v. Brenner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1965
- **Citation:** 380 U.S. 953

## Text

emice-Supreme Court, US

rite AP" J FILED

IN THE FEB 5 1965

Supreme Court of the United Qtabess os cz

ere rs

| ae 1 i”

In the Matter of

MIGuEL VEGA ANDRADA,
Petitioner.

Petition for a Writ of Certiorari to the Supreme
Court of California.

Pui SILVER,

1680 North Vine Street,
Hollywood, Calif. 90028,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

SUBJECT INDEX

Page
I.
SI: TMU | scsisasscesintessisasiscinstonedipsaeemnsasecsistennacemnaiamnelidiioc 1
II.
SI Shcihediies Nasi idechdipteeichcnaiisiicehaainahiaadadeadeniensiicaensions 1
DS SR AE EN NO SNL ETT IO 2
Be RRR en eerie Omen a seo ie
Reasons for granting the writ of certiorari ................ 5
The statutory authority in California to impose
IE: piletichslntieentpenitdetanincciaenzeemaiitisinaienmanboes 6
Cruel and unusual punishment may not be invoked
by a judicial imposed sentence ..............22...---0--+- 7
The Eighth Amendment prohibits the infliction of
cruel and unusual punishment ............0...2.0....eee-se- 8
IIR success dconicpuciesreciis caincbansietacldceasidpebuintasionsnloiestabon 14

TABLE OF AUTHORITIES CITED

Cases Page

Billings v. United States, 287 U.S. 216 -....0......2....- 8
Brewer v. Volk, 167 S.E. 638; 204 N.C. 186, ....

SERN Vir R NI. LIA OAS 12

Buck v. Bell, 272 U.S. 200, 71 L. Ed. 1000 ............ 11

Davis v. Berry, 216 Fed. 413 EO RTT 10

Finley, In re, 1 Cal. App. 198, 81 Pac. 104 ...... 8, 9

Garcia v. State Department, 36 Cal. App. 24,195 ..... 6
Louisiana, ex rel. Francis v. Resweber, 329 U.S.

S50, Si 4. Ge; 4, OF S. SA 4 nic 9
Se FG ae Re acts assnicin nscale 13
Mickle v. Henricks, 262 Fed. 687 -................-----c..00-- 10
Osborn v. Thompson, 103 Misc. 23, 169 N.Y.
© I I eccscnsesoscee nnernreiecimaacsetashaccinaniiea (12
People v. Blankenship, 16 Cal. App. 2d 606, 61 Pac.

OO eink cnet aiiieiadaoicee 6
People v. Hollis, 176 Cal. — 2d 92, 1 Cal. Rptr.

293 ae 7
People v. Jones, 87 Cal. App. 482 : = 7
People v. Means, 117 Cal. App. 2d 29, 245 P. 2d

OREO cL IS ENN SSAA ION Se FET 7
People v. Neal, 108 Cal. App. 2d 491, 239 P. 2d 138

a a a 7
People v. Raner, 86 Cal. App. 2d 107, 194 P.

ga renee Poet em porrreONC Oney SANE Fen SN 7
Riddle, In re, 57 Cal. 2d 848, 22 Cal. ine 472,

es Se Pe sitet eceneeaendinn 9

Robinson v. California, 370 U.S. 660, 82 S. Ct.
po Me Re |) ean MC Roa ee 9

Skinner v. Oklahoma, 316 U.S. 527 200020... > &
Skinner v. State ex rel. Williamson, 115 P. 2d 123 12
Smith v. Board of Examiners, 85 N.J.L. 46, 88

SRNR. ely ge toge DO Ot he Caco A A 11
Smith v. Command, 231 Mich. 409, 204 N.W. 140 13
Smith v. Wayne, 204 N.W. 140 .................. snuiabeienats 13
Springer v. United States, 148 F. 2d 411 -............ ee
United States v. Jackson, 235 F. 2d 925 ................-- 9
United States v. Rosenberg, 195 F. 2d 583 .............. 8

Statutes
California Constitution, Art. I, Sec. 6 -.........22..2...-..--- 8
California Penal Code, Sec. 270 eI NS eo see 2
California Penal Code, Sec. 645 .22222.........-ccccscesccseenes 6
California Penal Code, See. 1203 ......................... 7
California Penal Code, Sec. 2670 ............-c0--ccsececessooes 6

California Welfare and Institutions Code, Sec. 6624 6

United States Code Annotated, Title 28, Sec.
1253(3) tae fibel nite anitiddeausdbeaeaicansiehd 2

United States Constitution, Eighth Amendment....

United States Constitution, Fourteenth Amendment
sels iailahcaislam sila acaeesbs Si aeictaatalciestelioson ie Zz, 6 3 31, %, 3S
Textbooks
72 Harvard Law Review, p. 168 «............................... 9
76 Harvard Law Review, p. 143 ...................-.-..<ecc0-- 9
Wayne Law Review (1957), pp. 125, 131, 132 ........ 8

owen.

IN THE

Supreme Court of the United States

‘October Term, 1964
See

In the Matter of

&.

MIGUEL VEGA ANDRADA,
Petitioner.

Petition for a Writ of Certiorari to the Supreme
Court of California.

To the Honorable Earl Warren, Chief Justice and
Associaie Justices of the Supreme Court of the
United States:

i
Opinion Below.

Petitioner Miguel Vega Audrada prays -hat a writ of
ceritorari issue to review an order of the Supreme
Court of California entered without an opinion in the
case cf In the Matter of the Application of Miguel Vega
Andrada for a writ of habeas corpus, case number 8332,
Supreme Court of California.

II.
_ Jurisdiction.

A petition for a writ of habeas corpus filed by the
Petitioner originally in the Supreme Court of.California
was denied on Nov. 10, 1964. This petition is being filed
within 90 days thereafter.

ca

The jurisdiction of the Supreme Court of the United

States to review this case on petition for certiorari is
invoked under 28 U.S.C.A. 1253(3).

Questions for Review.

1. Does sterilization as punishment in a misdemean-
or failure to provide case constitute a violation of the
Eighth Amendment of the United States Constitu-
tion?

2. If a Defendant pleads guilty te a charge of
failure to provide — a misdemeanor — and applies for
probation does the coercion of a threatened jail sentence
by the municipal court, unless the Defendant agrees to
submit to sterilization constitute a violation of procedural
due process of law under the Fourteenth Amendment?

Statement of the Case.

On October 3, 1963, a complaint was filed against the
petitioner in the Municipal Court of Pasadena Judicial
District by one, Aurora Andrade, accusing the petition-
er Of having committed a misdemeanor, to wit: Section
270 of the Penal Code of the State of California, it
being alleged that the petitioner had wilfully and unlaw-
fully and without lawful excuse omitted tc furnish
necessary food, clothing, shelter, medical attendance, and
other remedial care for his minor children, Albert —
aged 17, Trinidad — aged 15, Rita — aged 13, and
Jose — aged 5.

The petitioner thereafter was duly arraigned and the
case set for trial.

On December 2nd, 1963, the petitioner entered a plea
of “Guilty” and made an application for probation. On
January 6, 1964, the case was called for hearing for

See Ve

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esha

probation and sentence before the Honorable Joseph
A. Sprankle, Jr., Judge Presiding. Thereupon, the fol-
lowing proceedings took place.

Judge Sprankle invited counsel for the defendant and
the defendant to confer with him privately in his
chambers. Such a conference was then held. Neither the
court clerk nor any court reporter were present.. The only
persons then present were Judge Sprankle, the defen-
dant, and defendant’s counsel, one. Fernando Solis.

Judge Sprankle stated to the petitioner and to peti-
tioner’s then counsel, the following:

“T am concerned about all the children this man is
producing without the ability to support them. I
would te more inclined to look favorably to the
defendant for probation if the defendant would,
No. 1 — marry this woman with whom he has had
a child, and secondly, submit to an operation which
would keep him from procreating. I am nct compel-
ling him to submit to sterilization, but 7f he does
not agree to it, his chances of probation will be
considerably lessened.”

Mr. Solis, in the presence of Judge Sprankle, then
stated to petitioner,

“The judge wishes you to marry Elma [Martel-
lo], that the judge wants you to have an operation
not to have any more children, that the next time
you come back to court, you should have a certifi-
cate of marriage and a letter from your doctor to
the effect that you have had an operation [steriliza-
tion].

“That you are either to bring in the certificate of
marriage and a letter from the doctor, or you will
go to jail.”

—

That petitioner then stated to Mr. Solis, in the pres-
ence of judge Sprankle, that he did not want this oper-
ation. That Judge Sprankle replied — “If you don’t
bring those two papers, I will put you in jail.”

Thereupon, the parties re-entered the courtroom and
Judge Sprank!e announced from the bench that the case
was being continued to February 6, 1964, for sentence.

That after petitioner left the courtroom with his
attorney, he stated to his attorney — “Must I submit to
sterilization? — I love this woman very much and I
would like to have more children with her.” That his
attorney replied to him — that if he did not agree to
sterilization, as suggested by Judge Sprankle, he would
probably be sentenced to jail.

That petitioner asked his attorney (Mr. Solis) if there
was any way of avoiding this operation. That his
attorney replied chat Judge Sprankle had been quite clear
as to the consequences if he did not submit to this
operation; that unless petitioner brought a medical cer-
tificate to court and a marriage license, he could look
forward to some time in jail.

Thereafter, petitioner discussed this matter with his
personal physician, Dr. Rudolfo Chacon, who referred
him to one Dr. Henry R. Alpert. On January 16, 1964,
your petitioner submitted to a vasectomy nerformed by
Dr. Henry R. Alpert.

Subsequently thereto, petitioner was again re-exam-
ined by Dr. Alpert who then informed petitioner that he
could ::0 longer have any children.

On January 24, 1964, the petitioner entered into a

marriage ceremony with Elma Martello in the County of
Los Angeles.

prem Wie

On February 6, 1964, the following proceedings took
place in court before the Honorable Judge Joseph A.
Sprankle, Jr. Petitioner’s attorney stated to Judge
Sprankle in open court — “I have the documents your
honor has requested in this matter.” and he thereupon
handed the marriage certificate of the petitioner and
Elma Martello and the certificate from Dr. Henry
Alpert, to the bailiff, who in turn handed the two
documents to Jsdge Sprankle for his inspection Judge
Sprankle then announced the following sentence: That
petitioner be sentenced to one year in the County Jail,
roadcamp recommended; that the sentence be suspended
and defendant placed on probation for a period of three
yeas, on the following terms and conditions: (1) sup-
port his minor children to the best of his ability, but not
‘less than $65.00 per month through the court trustee;
the court trustee to advise the court within five days if
defendant fails to make the payments; (2) remain a
law-abiding citizen; (3) no reporting to or supervision
necessary by the probation department.

Thereafter, and to this date, your petitioner has made
each and all payments required to be made by him,
pursuant to the conditio.s of the probation sentence.

On November 10, 1964 a petition for a writ of habeas
corpus was denied by the California Supreme Court.

Reasons for Granting the Writ of Certiorari.

The action of the Municipal Court, an inferior court
of limited jurisdiction in the State of Califcrnia, compel-
ling the Petitioner to submit to sterilization under the
coercive alternative of a jail term and the denial of
his application for probation “involves one of the basic
civil rights of man.” Sinner v. Oklahoma, 316 US.

sactllbiies

535. The case touches a sensitive and important area of
human rights (id.). The refusal of the California Su-
preme Court to grant the writ of habeas corpus sought
for by petitioner has not only coridoned the “cruel and
unusual punishment” inflicted in this case, but it has
similarly established that this punishment may continue
to be carried out in open defiance of the 8th and Four-
teenth Amendments of the United States Constitution.

The Statutory Authority in California to impose
Sterilization.

The sole statutory authority in California to impose
sterilization by the courts (limited to the Superior
Court is (1) Carnal abuse upon a child under ten (10)—
Penal Code §645; and (2) Sex degenerates who have
been committed to a state prison at least twice for rape
and three times for other major crimes. (Penal Code
2670). (The District Court of Appeal determined that a
syphilitic defendant who had been convicted of statutory
rape, a felony, could be required to submit to a vasec-
tomy. People v. Blankenship, 16 Cal. App. 2d 606, 61
Pac. 53 [1936].)

In 1939, §6624 of the Welfare and Institutions Code
which authorized vasectomy operations on inmates con-
fined to institutions was implicitly held to be constitu-

tional, despite the lack of notice requirements. Garcia v.
State Department, 36 Cal. App. 2d 195.

These are the only two reported decisions in Califor-
nia involving vasectomies.

There is neither statutory, nor legal precedent in
California for the imposition of sterilization in a misde-
meanor failure to provide case.

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Thus, California, without statutory authority or legal
precedent has become the first and only state in the
United States which presumably places fathers unable to
support their children in the same category with rapists
of young children and state-confined sex degenerates.

Cruel and Unusual Punishment May Not Be Invoked
by a Judicially Imposed Sentence.

It is not within the purvue of a court’s powers, 1.¢., a
Municipal Court in a misdemeanor case, to coerce a
defendant to submit to sterilization as a precondition for
the court’ to look favorably upon his application for
probation. The California Penal Code provides that
conditi. ns of probation must be reasonable. 1203. Penal

Code.

In California a Defendant is entitled to have an ap-
plication for probation determined on its merits the court
being required to exercise a “legal discretion’’. The denial
if a fair hearing on an application for probation de-
prives a defendant of a “substantial right”. People v.
Means; 117 Cal. App. 2d 29, 245 P. 2d 585 (1953);
People v. Neal, 108 Cal. App. 2d 491, 495, 239 P. 2d
138; People v. Jones, 87 Cal. App. 482, 498 (1927);
People v. Raner, 86 Cal. App. 2d 107, 194 P. 3d 37;
People v. Hollis, 176 Cal. App. 2d 92, 98, 1 Cal. Rptr.
293 (1959).

In Springer v. United States (C.C.A. 9th — 1945),
148 F. 2d 411, the circuit court of appeals held void a
condition of probation that a defendant give a pint of
blood at a Red Cross blood bank.

Probation is intended to be an amelioration of the
punishment described by law, for the offense. The
United States Supreme Court has said that while
probation is a matter of grace, the probationer is entitled

‘olin

to fair treatment and is not to be made victim of whim
or caprice. Billings v. United States, 287 U.S. 216, 223
(1932). For a discussion of the Billings case, see 3
Wayne L. Rev. 125, 131, 132 (1957).

When the question was presented to the United States
Supreme Court, Justice Jackson, in a concurring opin-
ion, said, |

“There are limits to the extent to which a
legislatively represented majority’ may conduct bi-
ological experiments at the expense of the dignity
and personality and natural powers of a minority.
Even ‘those who have been guilty of what the
majority define as crimes. But this act falls down
before reaching this problem, which I mention only
to avoid the implication that such a question may
not exist, because not discussed. On it, I would
reserve judgment.” (Skinner v. Oklahoma, 316
U.S. 527, 546.)

The Eighth Amendment Prohibits the Infliction of
Cruel and Unusual Purishment.

The Eighth Amendment to the federal Constitution
and Art. I, Sec. 6 of the California Constitution both
prohibit cruel and unusual punishment.

A penalty is cruel when it shocks the moral sense and
outrages thuse innate principles of humanity which have
been broadened and expanded by civilized enlightenment.
In ve Finley, 1 Cal. App. 198, 81 Pac. 104; United States
v. Rosenberg, 195 F. 2d 583.

While it is generally for the legislature to define
crimes and fix punishment that may he inflicted, courts
may denounce the punishment as unusual if it is “out of
all proportion to the offense, and is beyond question an

a

extraordinary penalty for a crime of ordinary gravity
committed under ordinary circumstances.” Finley, In re,
supra.

The Due Process clause of the Fourteenth Amend-
ment prohibits a state from executing sentence in a

cruel manner. Loutsiana, ex rel. Francis v. Resweber,
329 U.S. 459, 81 i. lid. 422, 67 S. Ct. 374.

The infliction of cruel or inhuman punishment upon a
prisoner is a violation if his due process rights under the
Fourteenth Amendment. (Jn re Riddle (1962), 57 Cal.
2d 848, 851, 22 Cal. Rptr. 472, 372 P. 2d 304 footnote
1. United States v. Jackson, 235 F. 2d 925 (1956).)

The authoritative pronouncement finally came in Rob-
imson v. California (1962), 370 U.S. 660, 82 S. Ct.
1417, 8 L. Ed. 2d 758; 76 Harv. L. Rev. 143. The
Eighth Amendment similarly prohibits the state from the
infliction of “cruel and unusual punishments.” See
Weems v. United States (1909), 217 U.S. 349, 30S. Ct.
544, 54 L. Ed. 793; Trop v. Dulles (1958), 356 U.S.
86, 78 S. Ct. 590, 2 L. Ed. 630.

In Trop v. Dulles (supra) the Supreme Court deter-
mined that the punishment of statelessness is too un-
civilized to meet the test of the Eighth Amendment.
(See also 72 Harv. L Rev. 168.)

In Robinson v. California (1962), 370 U.S. 660, 82
S. Ct. 1417, 8 L. Ed. 2d 758, the United States Supreme
Court held the California narcotic addiction statute
unconstitutional and that even the mild punishment of a
90-day jail sentence was therefore cruel and unusual.

In Iowa, a three-judge Federal Court held a statute to
be void which required the performance of a vasectomy

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on a criminal twice convicted of a felony. Davis v.
Berry, D.C. Iowa, 1914, 216 Fed. 413, 419.

In 1918, a District Court Judge in Nevada upheld the
claim that the imposition of a vasectomy violated the
Nevada Constitution which prohibited cruel and unusual
punishment. Mickle v. Henricks, 262 Fed. 687 (1918).

The court acknowledged that the operation could be
performed in such a manner as to be painless. The court
said, “There is no attempt by defendants to support the
judgment on the ground that vasectomy is calculated to
promote general welfare.”

The court emphasized that mutilation of the person
had never been a recognized mode of punishment in
Nevada, and that the Nevada Constitution forbidding
punishments either “cruel or unusual,’ was to forbid
newly devisec as well as cruel punishments.

The Nevada court then concluded:

“Vasectomy in itself is not cruel; it is no more
cruel than branding, the amputation of a finger, the
slitting of a tongue, or the cutting off of an ear;
but when resorted to as punishment, it is ignomini-
ous and degrading, and in that sense is cruel.

“Reformation of the criminal is a wise and
humane purpose of punishment, to be disregarded
only when the death penalty is inflicted. It needs no
argument to establish the proposition that de-
grading and humiliating punishment is not con-
ducive to the resumption of upright and self-
respecting life. When the penalty is paid, when the
offender is free to resume his place in society, he
should not be handicapped by the consciousness that

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he bears on his person, and will carry to his grave a
mutilation which, as punishment, is a brand of
infamy.”

In Buck v. Bell, 272 U.S. 200, 71 L. Ed. 1000, the
statute provided for an intelligent and scientific inquiry
to determine whether or not the defendant could trans-
mit to offspring a mental deficiency imposing unneces-
sary burdens upon society.

That case is regarded as a land-mark decision in the
struggle for compulsory human sterilization of the men-
tally disordered in the United States.

The United States Supreme Court held that a Virgin-
ia law which authorized the sterilization of mental

defectives under careful safeguards did not violate the

due process clause of the Fourteenth Amendment. Jus-
tice Holmes delivered the opinion of the court. In
upholding the Virginia sterilization statute, he said,
“Tt is better for all the world, if instead of waiting to
execute degenerate off-spring for a crime, or let them
starve for their imbecility, society can prevent those who
are manifestly unfit from continuing their kind .. .
Three generations of imbeciles are enough.”

The United States Supreme Court decision in Buck v.

M

Bell did not imply the right of the state to destroy the .

constitutionally protected right of an indigent father to
the guarantee of life, liberty and the pursuit of hap-
piness.

The present failure to provide case in California did
not involve a convicted sex degenerate, nor a mental
defective.

In Smith v. Board of Examiners, 85 N.J.L. 46, 88
Atl. 963 (N.J.) a statute was considered which provided

“

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for sterilization of epileptics confined in charitable insti-
tutions. It was voided by the New Jersey Court because
it was held io be repugnant to the 14th Amendment to
the Federal Constitution.

in Osborn v. Thompson, 103 Misc. 23, 169 N.Y.
Supp. 638, a New York court held unconstitutional a
sterilization statute because of a denial of equal protec-
tion of the law, and because not within the proper
exercise Of police power.

The case was later affirmed in 171 N.Y. Supp. 1094.

In Brewer v. Volk, 167 S.E. 638, 204 N.C. 186, S.
Ct. 1933 the North Carolina Supreme Court said in
holding a sterilization statute unconstitutional, “The
present act makes no provision for notice and hearing,
and therefore impinges the due process clause of the
Constitution.”

In Skinner v. State ex rel. Williamson (1941), Su-
preme Court, Okla., 115 P. 2d 123, the State Supreme
Court, in a five to four decision upheld the habitual
criminal sterilization act. This act provided that any
person adjudged to be such an habitual criminal, 1.¢., the
conviction of two or more crimes to final judgment
amounting to felonies involving moral turpitude, shall be
rendered sexually sterile. The State Supreme Court
acknowledged that where the operation of a vasectomy is
required or authorized in a purely penal statute as a
punishment for crime, it has been held to constitute
cruel and inhuman punishment, the Court citing cases.

a

The Supreme Court also noted that the constitutional
objections being urged are not applicable where the
operation of vasectomy is required as a eugenic measure
and not as punishment.

The four dissenting judges in concluding that the act
deprives persons of constitutional rights without due
process of law and offends against state and federal
constitutions declared, “The right to beget children is
one of the highest natural and inherent rights, protected
by Section 7, Article 2 of the Constitution of the State,
and the 14th Amendment to the onstitutign of the
United States relating to due process.” And the Court
_ added, “The hearing provided by the Act does not
provide for inquiry into any possible criminal traits of
the person informed against and requires no finding as
to whether or not such traits are transiaittable to his
posterity, nor whether by accident, disease, age, infirmi-
ty, or for any other reasons such person is reasonably
capable of producing of fspring either criminai, degener-
ate, or imbecile, against which the legislature may
legitimately seek to protect society.” (Reversed 316
U.S. 527; to same effect Smith v. Wayne, 204 N.W. 140
(1925); In re Mein, 19 P. 2d 153 (1933).)

In Smith v. Command, 231 Mich. 409, 204 N.W. 140
(1925) the court stated that the provision in the statute
which authorized sterilization of the feeble minded class
who were unavie to support any children they might have,
and whose children probably would become public charges
by reason thereof was unconstitutional class legislation
based on financial ability.

~-if—
Conclusion.

At stake lies the issue as to whether Municipal Courts
in the State of California may without statutory author-
ity and solely as a measure of punishment continue to
subtly coerce Defendants in failure to provide cases to
submit to sterilization as the price for obtaining
prccedural due process of law. Sterilization as punish-
ment for an indigent father’s inability to support his
children and as the price to pay to obtain fair piay from
a court of justice can at best be termed not only an
arbitrary and unreasonable deprivation of a person’s
liberty but at the worst, perhaps the saddest commentary
on the ineptitude of our times.

Genetics of the Human Race; Genetics in the
Twentieth Century, pp. 393-394 (1951);
Cook, “Eugenics or Euthenics, 37 Ill. L. Rev., pp.
291, 298 (1943).
Respectfully submitted,

PHIL SILVER,
Attorney for Petitioner.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0412%3A1. Public record. Not legal advice.