Eugenics money won’t be quick and easy

Eugenics money won’t be quick and easy

- in Law and the Courts

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It took years for North Carolina to acknowledge its mistreatment of the more than 7500 men and women involuntarily sterilized from 1929 to 1974 under the guise of state law, and more years after to agree to compensation for those victims.

Now, with a June 30 filing deadline looming for claims under the $10 million compensation fund approved in 2013, the state is poised to move forward from one of the most shameful programs in its history.

But reaching closure may not be as quick or as clean as some lawmakers might like.

Already, some families of victims fear they may be shut out of the process because they can’t get documents needed to prove their eligibility.

Others are learning that although their own relative has already been verified by the state as a victim of the program, they can’t recover because that relative died too soon.

And the politically-charged Industrial Commission, whose task it is to sort through the claims and award compensation, is confronting the possibility of more eligible claimants than initially assumed and the likelihood of a final disposition of fund monies beyond the hoped-for June 2015 deadline.

The Commission is also facing a perception that, as an increasingly conservative body aligned with state lawmakers who were less than sanguine about compensation, it might be rushing to close out the process without giving the claims the time and sensitivity they deserve.

A numbers game

As approved in late 2013, the state eugenics compensation program permits victims, and families of victims who were still alive on June 30, 2013 but have since died, to recover a pro rata share of the $10 million fund.

Ascertaining just how many victims that might be has been more art than science, and the state’s own numbers fluctuate wildly from the number presumed to be filing claims to the actual number that might be eligible.

In January 2012, a governor’s task force recommended that each victim be awarded $50,000 – an amount which, given a $10 million fund, presupposes 200 eligible claimants.

That number may have been pegged to the roughly 190 victims the state’s Justice for Sterilization Foundation was able to verify as of June 2013.

But the state’s own numbers also show that, as of 2012, as many as 1800 of the 7500 victims of the program may still be alive.

Given that more than 2000 of those victims were under the age of 18 at the time of sterilization (as reported by the Winston-Salem Journal in its comprehensive series “Against Their Will”), a number of still-living victims far beyond the 190 verified by the state is not inconceivable.

As of May 1, the Office of Justice for Sterilization Victims had received 442 claims from potential victims, and has forwarded 281 to the Industrial Commission for further consideration.

Those claims not yet forwarded have not been rejected, but are being held pending receipt of further information from claimants, according to Chris Mears, public information officer from the Department of Administration.

“No claim forms are being rejected,” he said. “We still mark them as received.”

It’s important for potential victims to understand that June 30 is a hard deadline, Mears added, so that regardless of problems they may have with supporting documents, they should still file a claim form before that date.

Getting shut out

In the course of providing pro bono help to potential claimants, attorneys with the University of North Carolina Center for Civil Rights have learned that some families of deceased victims with eligible claims may nonetheless be excluded from any recovery because of arbitrary requirements.

For example, family members of victims may be compensated, but program rules require proof that they are legally authorized to act on behalf of the victim. That means letters of administration or other legal documents typically obtained during estate proceedings must be submitted.

But many of these victims died without assets and thus had no such estate proceedings.

“Indeed, one reason these individuals became victims was their lack of sophistication, education, and socioeconomic status,” Elizabeth Haddix, an attorney with the Center, wrote in a May 13 letter to the Commission.

The task of now getting an estate opened in North Carolina and obtaining required documents to support a victim’s claim is a time-consuming and costly process, Haddix added.

And families of victims who died in other states may not have had or been able to open an estate under their own state laws.

The Center has asked the Commission — and, under a separate letter, the General Assembly – to extend the June 30 filing deadline and expand the types of proof family members can submit.

Haddix has not yet received a response from the Commission.

Other families are being shut out because their victims died too soon.

Under program rules, families can recover if a victim was alive on June 30, 2013.

That’s an arbitrary cut-off date, Haddix said, particularly for those who had already been verified by the state as victims of the eugenics program but who had died before that date.

The Center has heard from families of victims who’d received a match letter from the state but then died before the cut-off.

To the extent their claims are rejected by the Commission for that reason, appeals will likely follow, Haddix said.

Political and procedural realities

The handling of the compensation claims will be a test of sorts for the Commission under the leadership of new chairman Andrew Heath.

One deputy commissioner, who makes a determination of eligibility, is initially reviewing claims. From there, a claimant can seek reconsideration before that deputy, further review before the full Commission, and then a review in the appellate courts.

Heath came on board amidst efforts last summer to rid the Commission of then-sitting commissioners and replace them with Republican appointees.

Some viewed his prior experience as a worker’s compensation defense attorney as indicative of the pro-business direction the Commission might take under the McCrory administration.

And in conversations off the record (because of ongoing cases pending before the Commission) some plaintiff’s attorneys professed concerns that decisions from that body are in fact trending that way. They also wondered whether politics would get in the way of giving the eugenics claims the fair consideration and sensitivity they deserve.

The governor’s recent nomination of attorney Charlton L. Allen to a seat on the Commission has added fuel to that fire.

The state Democratic Party claimed in this press release that little is known about Allen’s qualifications for the position of commissioner — but plenty is known about Allen’s political endeavors.

A Republican with clearly conservative positions on the issues, Allen unsuccessfully ran for the 95th District state House seat in 2012.

He is also the founder of the often-controversial Carolina Review, which was, at the time Allen was a law student in Chapel Hill, embroiled in a free speech controversy over a cartoon in the Review some perceived to be anti-Semitic.

As the Duke University student newspaper, The Chronicle, reported at the time, Allen defended his decision to print the picture of Nelson and said that it was not meant to be anti-Semitic.

“Our cartoonist lampooned [a student candidate] as such because her perception was that [he] was evil,” he said. “Newspapers in the past few weeks have run cartoons lampooning public figures such as Gingrich, Pat Buchanan and even myself as “devils” with horns and pitchforks. Where’s the public outcry over these cartoons?”

In response, Allen said that neither his political views nor his involvement with the Carolina Review would have any bearing on how he would conduct himself if confirmed as commissioner.

“I would always endeavor to treat people on all sides of all issues that are before me, should I be confirmed, fairly and impartially,” Allen said. That’s something I would take extremely seriously if were to serve as a commissioner.”

Update: Late Friday Industrial Commission Chairman Andrew Heath responded to concerns raised in this article, per the statement below:

“On Monday or Tuesday of this week, a Deputy Commissioner spoke with Elizabeth Haddix of the UNC Center for Civil Rights and informed her that claims would not be deprived of the opportunity to have a determination made solely on the basis that the filing individual was not able to obtain the required estate documents. This is consistent with the Commission’s Rule allowing waiver of the Rules in the interests of justice.

The Industrial Commission has six Commissioners, five of whom are Democrats, and myself a Republican. However, eugenics compensation is not a partisan issue. We all took an oath of office to do our duties according to the law and to the best of our abilities. We are subject to the Code of Judicial Conduct and it is our job to weigh the evidence and apply the law in an impartial manner. The Commission’s goal is to ensure that anyone who is determined under the law to have been involuntarily sterilized by the Eugenics Board of North Carolina receive compensation.”