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| [1] | Oregon Court of Appeals |
| [2] | CA A107235 |
| [3] | 1999.OR.0042643 <http://www.versuslaw.com> |
| [4] | December 29, 1999 |
| [5] | JANE DOES 1, 2, 3, 4, 5, 6, AND 7, APPELLANTS, v. THE STATE OF OREGON; JOHN A. KITZHABER, GOVERNOR OF OREGON; AND EDWARD JOHNSON, STATE REGISTRAR OF THE CENTER FOR HEALTH STATISTICS IN OREGON, RESPONDENTS, AND HELEN HILL, CURTIS ENDICOTT, SUSAN UPDYKE; AND THE OREGON ADOPTIVE RIGHTS ASSOCIATION, INTERVENORS-RESPONDENTS. |
| [6] | 98C-20424 |
| [7] | I. Franklin Hunsaker argued the cause for appellants. With him on the
briefs were Loren D. Podwill and Bullivant Houser Bailey, a professional
corporation. David Schuman, Deputy Attorney General, argued the cause for
respondents. On the joint respondents' brief were Hardy Myers, Attorney
General, Michael D. Reynolds, Solicitor General, Mary H. Williams, Assistant
Solicitor General, and Brendan C. Dunn and Robert M. Atkinson, Assistant
Attorneys General. Thomas E. McDermott III argued the cause for intervenor-respondents.
With him on the joint respondents' brief was Roy Pulvers. Jeffrey M. Batchelor,
Jeffrey M. Batchelor, P.C., Michael P. Bentzen, Hughes & Bentzen, and
David M. McConkie, Merrill F. Nelson and Kirton & McConkie filed a brief
amicus curiae for National Council for Adoption. |
| [8] | Before De Muniz, Presiding Judge, and Linder and Brewer, Judges. |
| [9] | The opinion of the court was delivered by: DE Muniz, P. J. |
| [10] | Appeal from Circuit Court, Marion County. |
| [11] | Paul J. Lipscomb, Judge. |
| [12] | Argued and submitted November 22, 1999. |
| [13] | Stay issued by this court preventing Measure 58 from going into effect
is lifted, effective immediately; judgment affirmed. |
| [14] | DE MUNIZ, P. J. Plaintiffs appeal from a summary judgment in favor of
defendants State of Oregon and various state officials in their action for
declaratory and injunctive relief to have voter-enacted initiative Measure
58 (1998) declared invalid and to enjoin the state from implementing that
measure. Under Measure 58, adopted people over the age of 21 may gain access
to their original birth certificates and thus may determine the identities
of their birth mothers. Plaintiffs are women who surrendered children for
adoption in Oregon between the years 1960 and 1994.*fn1
Intervenors include the Oregon Adoptive Rights Association, several adoptees
(including the chief sponsor of Measure 58), and a birth mother who alleges
that no promises of confidentiality were made when she surrendered a child
for adoption in Oregon in 1967 and who desires contact with that child. |
| [15] | In this action, plaintiffs seek to prevent the disclosure of their children's
birth certificates to the children they relinquished for adoption, arguing
that Measure 58 violates the contracts clause of the state and federal constitutions
and also unconstitutionally violates their rights to privacy under both
constitutions. Each side moved for summary judgment, asserting that there
were no genuine issues of material fact and that it was entitled to judgment
as a matter of law. The trial court rejected plaintiffs' arguments and granted
summary judgment in favor of defendants. For the reasons set forth below,
we affirm. |
| [16] | Measure 58 provides: |
| [17] | "Upon request of a written application to the state registrar, any
adopted person 21 years of age or older born in the state of Oregon shall
be issued a certified copy of his/her unaltered, original and unamended
certificate of birth in the custody of the state registrar, with procedures,
filing fees, and waiting periods identical to those imposed upon non-adopted
citizens of the State of Oregon pursuant to ORS 432.120 and 432.146. Contains
no exceptions." |
| [18] | PRELIMINARY ISSUE CONCERNING REMEDIES In their second amended complaint
filed in the trial court, plaintiffs sought to have the court declare Measure
58 unconstitutional and further sought to have the court enjoin defendants
from implementing Measure 58. At the time of their initial filing, plaintiffs
and the state defendants entered into a stipulation for issuance of a preliminary
injunction restraining defendants and their agents from enforcing the provisions
of Measure 58 until entry of the trial court judgment in this case.*fn2
After the trial court entered judgment in defendants' favor, plaintiffs
moved for a stay of judgment pending appeal pursuant to ORS 19.350, which
the trial court denied. Plaintiffs then moved this court for a stay of judgment
pending a decision on appeal, asserting that they were seeking invalidation
of Measure 58 in this action. We expedited the appeal and granted plaintiffs'
motion for a stay of judgment on the ground that the appeal was taken in
good faith and not for purposes of delay, that the denial of a stay would
result in harm to appellants and could eviscerate the subject matter of
the appeal before a decision on the merits was possible. See generally ORS
19.350(3), (5) (setting forth factors to be considered in determining whether
stay should be granted). |
| [19] | In the course of briefing the issues to this court, plaintiffs filed a
reply brief that specifically disavowed any facial challenge to the constitutionality
of Measure 58 and asserted that they were only making an as-applied challenge
to the constitutionality of the law. Plaintiffs indicated in their reply
brief, and further clarified during oral argument of this case, that they
were claiming only that Measure 58 was unconstitutional as applied to the
six plaintiffs and to other birth mothers who received similar assurances
of confidentiality; plaintiffs conceded that the measure would not be unconstitutional
as to other birth mothers, such as the intervenor birth mother who received
no assurances of confidentiality and who desires contact with her adopted
child. See generally Advocates for Effective Regulation v. City of Eugene,
160 Or App 292, 299, 981 P2d 368 (1999) (in a facial challenge "the
question is whether the challenged enactment is valid as written, as opposed
to validly applied to a given set of facts"). |
| [20] | Given plaintiffs' concession that Measure 58 is capable of at least some
constitutional applications, the remedy of invalidation of the statute sought
by plaintiffs in this action and the temporary remedy imposed by the stay
of the judgment are not appropriate. Plaintiffs have sought invalidation
of Measure 58, and the stay entered by this court enjoins any application
of Measure 58 whatsoever. "It may be premised that injunction is a
proper remedy to prevent enforcement of void legislation." Kroner v.
City of Portland, 116 Or 141, 150, 240 P 536 (1925) (citing cases). It does
not follow, however, that an injunction preventing all enforcement of legislation
is a proper remedy when the plaintiffs do not contend that the legislation
is void but contend only that the legislation, although constitutional as
applied to others, would be unconstitutional as applied to them. See generally
Meltebeke v. Bureau of Labor and Industries, 120 Or App 273, 280, 852 P2d
859 (1993), aff'd 322 Or 132, 903 P2d 351 (1995) (rule was "not invalid,
because it has other constitutional applications and is not facially void"). |
| [21] | Plaintiffs have presented no ground for enjoining enforcement of Measure
58 in its entirety, as they are not asserting that it is facially unconstitutional.
Given plaintiffs' position, and without reference to the merits of their
as-applied constitutional challenges to the measure, we conclude that the
stay of judgment entered by this court preventing Measure 58 from going
into effect must be lifted immediately, as it grants more relief than plaintiffs
would be entitled to, even if they prevailed on each of their constitutional
arguments. |
| [22] | However, the fact that plaintiffs have requested relief to which they
are not entitled does not defeat their claim. A prayer for relief is not
a part of the complaint. Finch v. Miller, Credithrift, 271 Or 271, 275,
531 P2d 893 (1975). Moreover, "a prayer for the wrong relief following
a pleading that sets forth facts entitling the pleader to some relief does
not operate to deny the proper relief[.]" Wright v. Morton, 125 Or
563, 569, 267 P 818 (1928). Although plaintiffs sought improperly to enjoin
enforcement of Measure 58 in its entirety, they also sought "other
and further relief as the Court deems just and equitable." We, therefore,
address plaintiffs' as-applied constitutional claims, because other relief,
such as more limited injunctive relief, might be appropriate should plaintiffs
prevail. STATE CONSTITUTIONAL ISSUES |
| [23] | We turn to plaintiffs' claims under the Oregon Constitution. See State
v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court first addresses
claims under state constitution before turning to federal claims). Plaintiffs
argue that the provisions of Measure 58 that would permit their adopted
children to discover plaintiffs' identities unconstitutionally impair the
obligations of plaintiffs' adoption contracts in violation of Article I,
section 21, of the Oregon Constitution. The trial court rejected plaintiffs'
argument on the ground that Oregon laws before the enactment of Measure
58 did not provide the assurances of absolute confidentiality that plaintiffs
now assert were a part of their adoption contracts. |
| [24] | Article I, section 21, of the Oregon Constitution provides, in part, that
"no law * * * impairing the obligation of contracts shall ever be passed."
Plaintiffs assert that they were promised by staff of various private entities--such
as hospitals and adoption agencies that facilitated the adoptions--that,
under Oregon law, the identities of birth mothers who surrendered their
children for adoption would be kept confidential. Plaintiffs assert that
the state, through its agency the State Office for Services to Children
and Families (SOSCF, formerly Children's Services Division or CSD), was,
in effect, a party to those adoption contracts, given its role in regulating
adoptions and licensing adoption agencies. They further assert that the
individuals, such as physicians and social service workers who made representations
to them that their identities would be kept confidential, acted as agents
of the state in doing so. Plaintiffs argue that the express promises of
confidentiality that they received, coupled with Oregon statutes that, at
the time of the adoptions, provided for the sealing of adoption records,
including original birth certificates, were material terms of the contracts
for adoption into which they entered. They assert that the implementation
of Measure 58 unconstitutionally impairs the obligations of those contracts
in violation of Article I, section 21, of the Oregon Constitution. |
| [25] | In response, the state asserts that it was not party to any contract with
plaintiffs for the adoption of their children and that, even if it were,
no constitutional impairment of such contracts could be shown because confidentiality
of birth mothers' identities was never guaranteed by statute. Thus, the
state asserts, the change in the law does not substantially impair any contracts
with plaintiffs. |
| [26] | Because the success of plaintiffs' claim depends on the existence of a
statutory contract, our first step in analyzing their claims involves a
review of the relevant statutes on which plaintiffs rely. As noted above,
plaintiffs surrendered their children for adoption between the years 1960
and 1994, so our focus is on the pertinent statutory provisions in effect
during that period. However, for historical perspective, we also review
the history of adoption law in Oregon generally. At common law, adoption
was unknown. Zockert v. Fanning, 310 Or 514, 517, 800 P2d 773 (1990). Oregon's
first adoption law was enacted in 1864 and had the same effect as modern
adoption law of severing legal ties to the child's birth parents and declaring
the child to be the child of the adoptive parents for most purposes. General
Laws of Oregon 1843-1872, ch 13, §§ 67-68 (Deady and Lane 1874). The court
granting the adoption could also grant a certificate of name change if requested.
Id. § 73. All name changes, from adoption or otherwise, were reported to
the secretary of state and published annually with the statutes of the following
year. Id. § 74. Those laws made no provision for secrecy as to the identities
of birth parents.*fn3 |
| [27] | The adoption laws remained essentially the same until 1921, when the annual
publication of name changes ceased. The year 1939 marked the enactment of
the first law to provide any degree of anonymity to the participants of
an adoption. At that time, the journal, index, and fee register recording
adoption information was sealed but could be inspected pursuant to a court
order. Or Laws 1939, ch 321. In 1941, the legislature for the first time
provided for the creation of altered birth certificates for adoptees. That
law further provided, however, that the original birth certificate could
be opened, pursuant either to court order or on the request of an adopted
person who had reached the age of majority. Or Laws 1941, ch 130, § 21.
In 1957, the legislature eliminated the provision that permitted adult adoptees
to obtain their original birth certificates but retained the provision allowing
the birth certificates to be released on court order. Or Laws 1957, ch 193. |
| [28] | The next major alteration of adoption laws occurred in 1979. The legislature
at that time provided for sealing all adoption records, rather than only
the journal, index, and fee records as earlier provided. Or Laws 1979, ch
58, § 5. Again, the law provided for unsealing the records on order of a
court. Id. Effective January 1, 1980, the legislature required, in all cases
involving adoption of a minor, that a medical history of the minor's biological
parents be provided to the adoptive parents at the time of the decree and
to the adoptee, on request, after the adoptee reached the age of majority.
Or Laws 1979, ch 493, § 2. |
| [29] | In 1983, the legislature created a voluntary adoption registry, whereby
birth parents and adoptees, by mutual consent, could agree to exchange either
non-identifying or identifying information. That law also provided a mechanism
for certain family members to contact or be contacted by adoptees after
a birth mother's death and for adult adoptees and their adult adoptee biological
siblings to contact each other, on their mutual consent. Also in 1983, as
part of a major overhaul of the state's vital records laws, certain provisions
were enacted relating to birth certificates. Or Law 1983, ch 709. Under
that law, although an original birth certificate would be sealed on creation
of a new birth certificate for an adoptee, the adoptive parents, the adoptee,
or the court could request that a new birth certificate not be created.
Or Laws 1983, ch 709, § 11a(1)(a); § 11a(6). That law further provided that
the sealed birth certificates could be subject to inspection either on order
of a court of competent jurisdiction or as provided by rule of the state
registrar. Id. at § 11a(2). |
| [30] | With that background, we turn to plaintiffs' assertion that a statutory
contract exists between them and the state for confidentiality of their
identities as revealed on the original birth certificates of their adopted
children. The primary provision on which plaintiffs rely is the introductory
section of the 1983 law establishing the voluntary adoption registry: |
| [31] | "It is the policy of this state that adoption is based upon the legal
termination of parental rights and responsibilities of birth parents and
the creation of the legal relationship of parents and child between an adoptee
and the adoptive parents. These legal and social premises underlying adoption
must be maintained. The state recognizes that some adults who were adopted
as children have a strong desire to obtain identifying information about
their birth parents while other such adult adoptees have no such desire.
The state further recognizes that some birth parents have a strong desire
to obtain identifying information about their biological children who were
adopted, while other birth parents have no such desire. The state fully
recognizes the right to privacy and confidentiality of birth parents whose
children were adopted, the adoptees, and the adoptive parents. The purpose
of this Act is to: |
| [32] | "(1) Set up a voluntary adoption registry where birth parents and
adult adoptees may register their willingness to the release of identifying
information to each other; |
| [33] | "(2) Provide for the disclosure of identifying information to birth
parents and their genetic offspring through a social worker employed by
a licensed adoption agency, if a birth parent or parents and the adult adoptee
are registered; and |
| [34] | "(3) Provide for the transmission of non-identifying health and social
and genetic history of the adult adoptees, birth parents and other specified
persons." |
| [35] | Article I, section 21, of the Oregon Constitution precludes the legislature
from passing laws--or the voters acting in their legislative capacity from
passing initiatives--that "impair the obligations of contracts."
That provision applies to contracts made by the state, as well as to contracts
entered into by private parties. Eckles v. State of Oregon, 306 Or 380,
390, 760 P2d 846 (1988), appeal dismissed 490 US 1032 (1989). Consequently,
it is possible for one legislature to "bind a succeeding legislature
to a particular course of action." Hughes v. State of Oregon, 314 Or
1, 13, 838 P2d 1018 (1992). Plaintiffs assert that the legislation in place
before the enactment of Measure 58 pertaining to confidentiality of birth
records of adoptees formed contractual obligations and thereby bound succeeding
lawmakers to the terms of confidentiality established by the earlier laws.
In particular, plaintiffs rely on: the provisions of the 1957 enactment
described above, as amended in 1979 and codified at ORS 7.211, that provides
for the opening of adoption records only on order of a court; the law providing
for the creation of altered birth certificates and the sealing of original
birth certificates enacted in 1939, as amended in 1957 to prohibit disclosure
of the original certificates to adult adoptees in the absence of a court
order; and the policy statement contained in the voluntary registration
legislation enacted in 1983 that "fully recognizes the right to privacy
and confidentiality of birth parents whose children were adopted, the adoptees
and the adoptive parents." Or Laws 1983, ch 672, § 1. |
| [36] | Framed by plaintiffs' arguments, the precise issues are, first, whether
those statutory provisions created a statutory contract between the state
and birth mothers who relinquished children for adoption; and, second, whether
a guarantee of confidentiality of the birth mothers' identities is a material
term of that contract. As to the first inquiry, we must determine whether
the statutes in question "unambiguously express[ ] an intention to
create a contract." Hughes, 314 Or at 17. |
| [37] | In addressing questions under Article I, section 21, courts look to "general
principles of contract law." Eckles v. State of Oregon, 306 Or at 398.
We recognize, however, the difficulties of characterizing an adoption in
traditional contract terms. For example, it is undisputed that children
may not be bought and sold in commercial contractual transactions. See ORS
163.537 (buying or selling of person under age of 18 is a Class B felony).
Thus, to the extent that an agreement between one party to relinquish a
child for adoption and another party to adopt a child may be viewed as a
contract, it is a contract with terms that are strictly prescribed by state
law. Private adoption agreements that do not conform to state law generally
are not enforceable, although courts will give effect to adoption agreements
that are valid in the states in which they are made. See, e.g., Schultz
v. First Nat. Bk. of Portland et al, 220 Or 350, 359, 348 P2d 22 (1959).
Despite the difficulties in characterizing an adoption in terms of "general
principles of contract law," we accept for present purposes that the
mutual agreements required of birth and adoptive parents in completing adoptions,
coupled with the pervasive state regulation and, indeed, the state's dictation
of the terms of the agreements, create a species of agreement that may be
cognizable for purposes of Article I, section 21. See, e.g., In re Flora's
Adoption, 152 Or 155, 159, 52 P2d 178 (1935) (state is a party to adoption
proceedings). |
| [38] | The question remains whether there is a statutory contract and, if so,
which terms are statutorily provided. In FOPPO v. State of Oregon, 144 Or
App 535, 539-40, 928 P2d 335 (1996), we elaborated on the rule that a statutory
contract will not be inferred in the absence of an unambiguous legislative
expression of intent to create a contract: |
| [39] | "Where the legislation 'contain[s] nothing indicative of a legislative
commitment not to repeal or amend the statute in the future,' a statutory
contract probably cannot be found. [Eckles, 306 Or] at 391. Because a statutory
contract unambiguously must express that legislative commitment, resort
to the legislative history to root out some latent legislative promise is
inappropriate. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611-12,
859 P2d 1143 (1993) (courts may examine legislative history to discern legislative
intent only when that intent is not clear from text and context of a statute).
Legislative history can resolve ambiguity but cannot remove it. A statute
is unambiguous where the text provides support for only one plausible interpretation.
See Heinzel v. Backstrom, 310 Or 89, 96, 794 P2d 775 (1990) (contract is
ambiguous if it supports conflicting interpretations); see also Hughes,
314 Or at 14 (general principles of contract law normally govern inquiry
into whether statute creates contractual obligations for state)." |
| [40] | The Oregon Supreme Court found impairment of the obligations of contract
under Article I, section 21, in both Eckles and Hughes. We believe that
those cases are distinguishable from the present case in numerous ways. |
| [41] | In Eckles, the question presented was whether legislation that transferred
funds from the Industrial Accident Fund (IAF) to the state's general fund
and removed restrictions on the use of the IAF trust funds violated Article
I, section 21. IAF funds were received from insureds by the State Accident
Insurance Fund Corporation (SAIF), a public corporation that provides workers'
compensation insurance of the same type provided by private insurers. Those
funds had been designated as trust funds to be used exclusively for specific
purposes established by the workers' compensation laws. 306 Or at 382. |
| [42] | In 1982, the legislature, facing a budget deficit, ordered IAF trust funds
to be transferred to the general fund. Id. One of SAIF's insureds challenged
the constitutionality of the transfer on the ground that it impaired his
insurance contract with SAIF. The existence of a contract between SAIF and
its insureds was not in question; the issue was whether the statute designating
IAF trust funds for specific purposes within the workers' compensation system
formed the basis for a contractual obligation of the state to SAIF's insureds.
Id. at 390. The court concluded, based on the history of the IAF statute,
that the limitation on the use of the funds was enacted "to induce
skeptical employers to participate in a state insurance system that was,
and still is, voluntary in the sense that private employers need not obtain
workers' compensation insurance from SAIF." Id. at 393. The court concluded
that the portion of the legislation that ordered the transfer of IAF trust
funds to the general funds breached the insured's contracts and that the
state would be liable for the breach, but that the portion of the legislation
that removed the restriction on the use of the IAF trust funds, by contract,
unconstitutionally impaired the state's obligation of contract, by retroactively
altering the contract's terms. Id. at 399, 402. |
| [43] | In Hughes, state employees challenged legislation that subjected state
public employees' retirement (PERS) benefits to state income taxation, arguing
that the new provisions violated Article I, section 21. 314 Or at 5. In
Hughes, as in Eckles, the court had no trouble in determining that the plaintiffs
did, in fact, have contracts with the state--the state conceded that PERS
was a contract between the state and its employees. Id. at 11. The question,
then, was whether the exemption of benefits from state taxation was intended
to be a term of that contract. Id. at 21. The court held that the specific
tax limitation was an integral part of the statutes that created the PERS
contracts, in the light of the unambiguous statutory language that the benefits
"shall be" exempt from such taxes, which showed a legislative
commitment not to repeal or amend the statute in the future. Id. at 24-26. |
| [44] | Eckles and Hughes differ from the present case in two definitive ways.
First, a notable difference between the contract alleged to exist here and
the contracts at issue in Eckles and Hughes is that the state, as a contracting
party in Eckles and Hughes, was in a role that was essentially the same
as the role of any contracting party in a commercial transaction between
private parties. In Eckles, the state was acting as an insurer and contracting
with employers in the same manner as a private insurer would, offering the
other party an inducement (specific limitations on the use of IAF funds)
to enter into the commercial transaction with it rather than with another.
Similarly, in Hughes, the state was acting as an employer and, as might
be the case with any private employer, was offering benefits that were attractive
to employees, including tax-exempt retirement funds. Here, by contrast,
the state's role in an adoption is not analogous to the role of any interested
private party. The state's role is purely regulatory and involves the state's
oversight of the adoption process for the general welfare of society, as
well as for the specific welfare of the adoptee and the other parties to
the adoption. See generally ORS 109.309 to ORS 109.342 (home studies required
to establish that petitioners meet minimum standards for adoptive homes;
limitations on advertising of children for adoption; consent requirements;
grandparent visitation provisions; appointment of guardians; provisions
for medical history). Unlike the state as insurer in Eckles or the state
as employer in Hughes, the state does not seek an advantage for itself by
inducing individuals to agree to adoption on its terms. Rather, through
its adoption laws, the state decrees that, for purposes of general welfare,
adoption in Oregon is to occur only on certain terms. In sum, the role of
the state in an adoption agreement fundamentally differs from the role of
the state in an agreement with its own employees or its own insureds. |
| [45] | The second way that the present case differs from Eckles and Hughes is
that the existence and scope of a statutory contract is much easier to discern
in Eckles and Hughes. In Eckles, there was no dispute that the state, through
SAIF, entered into specific written agreements with certain employers to
provide certain insurance. Similarly, in Hughes, the state entered into
contracts of employment with its employees. Insureds had the opportunity
to contract with other insurers if they did not like the terms being offered
by SAIF; employees could choose to work for other employers if they did
not like the terms being offered by the state. Promises were made by the
state as insurer and by the state as employer to induce the insureds and
employees to enter into the contracts, and those promises constituted contractual
obligations. Here, by contrast, the state does not directly contract with
birth parents or adoptive parents. Those parties are free to enter into
adoption agreements with each other, or not; however, if they choose to
enter into such agreements, those agreements must conform to the laws of
the state. The statutory framework of adoption law, however, contains no
unambiguous promises by the state that are similar to the statutory promises
at issue in Eckles and Hughes. |
| [46] | The pre-Measure 58 statutory scheme governing adoption records and birth
certificates simply does not contain any unambiguous expression of legislative
intent to enter into a statutory contract with birth mothers to prevent
the disclosure of their identities to their adopted children without their
consent. As may be observed from the chronology described above, the laws
governing confidentiality of adoption records have been amended regularly
throughout this century to provide varying degrees of confidentiality at
various times. At no time in Oregon's history have the adoption laws prevented
all dissemination of information concerning the identities of birth mothers.
At no time in Oregon's history have the adoption laws required the consent
of, or even notice to, a birth mother on the opening of adoption records
or sealed birth certificates. Moreover, the laws do not demonstrate a legislative
intent to elevate considerations of a birth mother's desire for confidentiality
over the legitimate needs of other interested parties in obtaining information
concerning the birth. See, e.g., ORS 7.211; ORS 432.230 (placing no specific
limits on the discretion of courts to order adoption records and birth certificates
to be unsealed). The statement in the preface to the adoption registry law
that the "state fully recognizes the right to privacy and confidentiality
of birth parents whose children were adopted, the adoptees and the adoptive
parents" provides some support for plaintiffs' position that the 1983
legislature recognized the importance of confidentiality to some birth parents.
That statement, however, must be viewed in the context of the remainder
of the preface and in the context of the adoption registry statutes and
the rest of the statutory provisions concerning adoption and birth records.*fn4
The statement that we quoted earlier refers not only to birth parents but
also to adoptive parents and adoptees. It thus demonstrates no intent to
elevate the interests of birth parents over those of other interested parties
to an adoption. The legislature noted in the same paragraph that "some
birth parents have a strong desire to obtain identifying information about
their biological children" and that "some adults who were adopted
as children have a strong desire to obtain identifying information about
their birth parents." Or Laws 1983, ch 672, § 1. Those statements,
taken together, indicate a legislative intent to balance the interests of
all concerned parties rather than to place the interests of one party over
those of another. The content of the remaining provisions of the adoption
registry statutes bears out that reading. Although most of the contacts
to be facilitated by the adoption registry require the participation of
the birth mother, that is not true in every case. It is possible, for example,
for adult adoptees and their adult adoptee biological siblings to trace
each other through use of the registry. Id. §§ 7, 8, 11.*fn5
It is also possible for certain family members to obtain information when
the birth mother is deceased. Id. |
| [47] | The broader context of the adoption records and birth certificate statutes
in place at the time of the 1983 enactment that explicitly recognized birth
mothers' privacy and confidentiality rights make it clear that the legislature
was not guaranteeing the confidentiality to which plaintiffs claim they
are entitled. As noted above, all such records could be opened on court
order. Moreover, the same 1983 legislature provided that not all original
birth certificates were to be sealed when a child was relinquished for adoption,
and the birth mother had no say in whether the original birth certificate
was sealed. Or Laws 1983, ch 709, § 11 (codified at ORS 432.230). Under
ORS 432.230(1)(a), a new birth certificate is created on adoption and the
original is sealed, unless the adoptive parents, the adoptee, or the court
decreeing the adoption request that a new certificate not be created. That
statute is unambiguous; when that provision is used by adoptive parents,
adoptees, or a court, the birth mother's identity is not confidential. Plaintiffs
suggest that "ORS 432.230(1)(a) applies only to adult and stepparent
adoptions." In support of their position, they point to legislative
history that mentions adult adoption. We reject plaintiffs' contention.
Legislative history, even if it were definitive--and this legislative history
is not--cannot create an ambiguity in a statute that is not ambiguous on
its face. Nothing in the text of ORS 432.230(1)(a) limits its application
to adult or stepparent adoptions. As a practical matter, it may well be
that this section is used most often in those situations or in intrafamily
adoption situations. Nonetheless, it is not limited to those applications
and makes no provision for confidentiality of a birth mother's identity. |
| [48] | In short, nothing in the text or the context of the adoption statutes
on which plaintiffs rely evinces a legislative intent to enter into a contract
with birth mothers to guarantee them that their identities will not be revealed
to their adopted children without their consent. |
| [49] | Plaintiffs also contend, however, that, even if the statutes do not provide
the explicit guarantees of confidentiality to which they assert they are
entitled, the promises made to them by the various religious, medical, and
social service personnel employed by private entities are binding on the
state. Plaintiffs assert that the individuals who made those promises, although
not employed by the state, were acting as agents for the state when they
represented that identifying information about birth mothers would remain
confidential. |
| [50] | We fail to see how the fact that individuals working for private organizations
offered opinions about what they believed the law provided could somehow
transform them into agents of the state for purposes of creating binding
state contractual obligations. Even if such representations were made by
persons who were agents of the state, agents may not bind the state to any
arrangement that contravenes the statutes. See Tidewater Barge Lines, Inc.
v. EQC, 159 Or App 296, 304-05, 974 P2d 807, rev allowed 329 Or 287 (1999)
(agent did not have authority to bind government to a specific time frame
for seeking judicial review of a decision different from the time frame
established by statute). In any event, plaintiffs' reliance on the representations
of social service and medical personnel ultimately comes back to whether
the statutes themselves create a binding contractual obligation not to open
birth certificates for inspection by adoptees. If the statutes did not provide
for that promise, then state agents were without authority to make any such
promise. If the state agents were without authority to make such a promise,
then it is a promise that cannot be enforced. Harsh Investment Corp. v.
State Housing Division, 88 Or App 151, 744 P2d 588 (1987), rev den 305 Or
273 (1988) ("Those who deal with state officers must know the extent
of their authority and cannot claim by estoppel what they could not receive
by contract."). Those principles have particular force here, where
plaintiffs rely on those representations to "bind a succeeding legislature
to a particular course of action." Hughes, 314 Or at 13. If the legislature
itself has not bound succeeding legislatures to a particular course of action,
we know of no basis on which a solitary state agent, acting without statutory
authority, may do so. |
| [51] | Accordingly, we conclude that the trial court correctly determined that
Measure 58 does not impair obligations of contract in violation of Article
I, section 21, of the Oregon Constitution. |
| [52] | Plaintiffs next assert that Measure 58 unconstitutionally invades privacy
and confidentiality rights guaranteed to them by Article I, sections 1 and
33, of the Oregon Constitution. Article I, section 1, provides: |
| [53] | "We declare that all men, when they form a social compact are equal
in right: that all power is inherent in the people, and all free governments
are founded on their authority, and instituted for their peace, safety and
happiness; and they have at all times a right to alter, reform, or abolish
the government in such manner as they may think proper." |
| [54] | Article I, section 33, provides: |
| [55] | "This enumeration of rights, and privileges shall not be construed
to impair or deny others retained by the people." |
| [56] | Plaintiffs suggest that these provisions, read together, provide constitutional
protections to "fundamental" or "natural rights," which
they assert include a birth mother's right to conceal her identity from
her adopted children. Plaintiffs assert that the Oregon Supreme Court recognized
such a privacy right under Article I, section 1, and Article I, section
33, in Humphers v. First Interstate Bank, 298 Or 706, 696 P2d 527 (1985).
We disagree. |
| [57] | Humphers did not present any constitutional question, and the court did
not decide any issues concerning constitutional privacy rights in that case.
Humphers concerned numerous tort claims and a contract claim against a physician
who assisted an adoptee in discovering her birth mother's identity by falsely
informing a hospital that he had lost his medical records and that he needed
to obtain copies of the records for medical reasons. 298 Or at 708. The
court began by discussing contractual, malpractice, breach of confidence,
and intentional infliction of emotional distress remedies that might be
available to a plaintiff such as the birth mother, id. at 709-10, 717-18,
but it focused more on wrongful breach of confidentiality and invasion of
privacy in the form of "unauthorized intrusion upon plaintiff's seclusion,
solitude, and private affairs." Id. at 709, 711-12. The court recognized
that the plaintiff had a privacy interest in protecting her identity, noting
the statutory protections of adoptee birth records then in place. Id. at
716. That privacy interest was cognizable in tort; however, it was not absolute.
The court went on to note that it was not prepared to hold the adoptee liable
for invasion of privacy for seeking out her birth mother. "Nor, we
think, would anyone who knew the facts without an obligation of secrecy
commit a tort simply by telling them to [the adoptee]." Id. at 716-17.
The court further noted that, had the doctor's misrepresentations about
his need for the medical records been true, the plaintiff's "interest
in nondisclosure would have been just as much invaded" but that "the
intrusive conduct would lack the wrongfulness required for liability."
Id. at 716-17, n 13. Nothing in Humphers, however, suggests that the Oregon
Constitution recognizes a privacy interest, much less guarantees a constitutional
privacy interest that is coextensive with, or indeed greater than, privacy
interests that may be protected by tort law. |
| [58] | In sum, neither Article I, section 1, nor Article I, section 33, lend
any support to the idea that the framers of the Oregon Constitution intended
to confer on birth mothers a constitutional right to conceal their identities
from their children. Those provisions, taken separately or together, have
never been construed as providing a general privacy right under the Oregon
Constitution. As noted above, adoption was unknown at common law, and early
adoption statutes made no provisions for protecting the identities of birth
mothers. We conclude that Measure 58 does not violate Article I, section
1, or Article I, section 33, of the Oregon Constitution. FEDERAL CONSTITUTIONAL
ISSUES Article I, section 10, of the United States Constitution provides
that "[n]o State shall * * * pass any * * * Law impairing the Obligation
of Contracts." For the most part, the analysis above of the Oregon
constitutional protection against impairment of the obligation of contracts
is parallel to the federal analysis. See Eckles, 306 Or at 395-98 (discussing
evolution of federal law). For the reasons already described, the Oregon
legislation preceding Measure 58 did not create a contract with birth mothers
to guarantee them that their identities would not be revealed to their adopted
children without their consent.*fn6
The trial court correctly concluded that Measure 58 does not violate Article
I, section 10, of the United States Constitution. |
| [59] | Plaintiffs also argue that application of Measure 58 to them would violate
fundamental constitutional rights of privacy and confidentiality under the
federal constitution. In Griswold v. Connecticut, 381 US 479, 85 S Ct 1678,
14 L Ed 2d 510 (1965), the Court recognized a "penumbral" privacy
right, not specifically attached to any single constitutional provision,
"surrounding the marriage relationship." Id. at 486. In that case,
the Court struck down a state law that criminalized the use of contraceptive
devices or medicines by married couples. Id. Such a law, the Court stated,
has a "maximum destructive impact" upon the marriage relationship
that lies "within the zone of privacy created by several fundamental
constitutional guarantees." Id. at 485. In Eisenstadt v. Baird, 405
US 438, 92 S Ct 1029, 31 L Ed 2d 349 (1972), the Court extended that protection
to unmarried people as well, under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, on the ground that no rational
basis existed for treating married and unmarried people differently in regard
to their ability to use contraceptives. Id. at 447-48. The Court stated: |
| [60] | "If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear
or beget a child." Id. at 453 (emphasis in original; citations omitted).
Eventually, in Roe v. Wade, 410 US 113, 153, 93 S Ct 705, 35 L Ed 2d 147
(1973), the Court extended this penumbral privacy right affecting decisions
on whether to bear children to encompass a woman's right to choose to abort
a fetus in the earlier stages of pregnancy.*fn7
Plaintiffs assert that allowing their adopted children access to the birth
certificates that would reveal the names of their birth mothers violates
the constitutional privacy rights of birth mothers because it constitutes
an unwanted governmental intrusion into their decisions concerning whether
to bear or beget children. Eisenstadt, 405 US at 453. Plaintiffs assert
that the decision to give birth to a child and surrender it for adoption
should be protected to the same extent as a decision to have an abortion
or to give birth to a child and raise the child.*fn8 |
| [61] | We are sympathetic to plaintiffs' arguments because it is clear that the
decision to place a child for adoption is an intensely personal decision.
However, we are unable to conclude that a law that permits adult adoptees
access to vital records concerning their births has the same sort of constitutional
infirmities as the laws that criminalized contraception and abortion that
were struck down in Griswold, Eisenstadt, and Roe. A decision to prevent
pregnancy, or to terminate pregnancy in an early stage, is a decision that
may be made unilaterally by individuals seeking to prevent conception or
by a woman who wishes to terminate a pregnancy. A decision to relinquish
a child for adoption, however, is not a decision that may be made unilaterally
by a birth mother or by any other party. It requires, at a minimum, a willing
birth mother, a willing adoptive parent, and the active oversight and approval
of the state. Given that reality, it cannot be said that a birth mother
has a fundamental right to give birth to a child and then have someone else
assume legal responsibility for that child. See generally ORS 109.010 (concerning
duties owed by parent to child). Although adoption is an option that generally
is available to women faced with the dilemma of an unwanted pregnancy, we
conclude that it is not a fundamental right. Because a birth mother has
no fundamental right to have her child adopted, she also can have no correlative
fundamental right to have her child adopted under circumstances that guarantee
that her identity will not be revealed to the child. |
| [62] | Adoption necessarily involves a child that already has been born, and
a birth is, and historically has been, essentially a public event. In Doe
v. Sundquist, 106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997), the
Sixth Circuit Court of Appeals, in rejecting a similar challenge to a Tennessee
law that permits adoptees access to birth records, noted: |
| [63] | "A birth is simultaneously an intimate occasion and a public event--the
government has long kept records of when, where and by whom babies are born.
Such records have myriad purposes, such as furthering the interest of children
in knowing the circumstances of their birth. The Tennessee legislature has
resolved a conflict between that interest and the competing interest of
some parents in concealing the circumstances of a birth." |
| [64] | Neither a birth nor an adoption may be carried out in the absolute cloak
of secrecy that may surround a contraception or the early termination of
a pregnancy. A birth is an event that requires the generation of an accurate
vital record that preserves certain data, including the name of the birth
mother. That the state has a legitimate interest in preserving such data
is not disputed here. We recognize that a birth mother may well have a legitimate
interest in keeping secret the circumstances of a birth that is followed
by an adoption and also that an adoptee may have a legitimate interest in
discovering the identity of his or her birth mother. Legitimate interests,
however, do not necessarily equate with fundamental rights. The state may
make policy choices to accommodate such competing interests, just as the
state has done with the passage of Measure 58. We conclude that the state
legitimately may choose to disseminate such data to the child whose birth
is recorded on such a birth certificate without infringing on any fundamental
right to privacy of the birth mother who does not desire contact with the
child. |
| [65] | Stay issued by this court preventing Measure 58 from going into effect
is lifted, effective immediately; judgment affirmed. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [66] | *fn1
. No questions are presented in this case concerning birth fathers. Thus,
we limit our discussion solely to the questions presented in regard to birth
mothers. |
| [67] | *fn2
. Intervenors had not yet intervened at that point and were not a party
to the stipulation. |
| [68] | *fn3
. Oregon does not appear to have had a statewide system of issuing official
birth certificates until early in the 20th century. Not surprisingly, then,
the original adoption laws made no provision for alteration, amendment,
or sealing of birth certificates. |
| [69] | *fn4
. We note, moreover, that four of the plaintiffs placed their children for
adoption before the 1983 enactment and that the 1983 provisions therefore
could not serve as the basis for any statutory contracts between them and
the state. |
| [70] | *fn5
. Further provisions concerning tracing of adult siblings were enacted in
1993 and are codified at ORS 109.502 through ORS 109.504. |
| [71] | *fn6
. We note that, even if we were to conclude that plaintiffs had shown a
substantial impairment of a contractual relationship, the analysis under
Article I, section 10, of the United States Constitution would further require
us to determine "whether the state law creating the substantial impairment
is justified by a significant and legitimate public purpose and whether
the method used by the state to advance that public purpose constitutes
an unnecessarily broad repudiation of its contractual obligation to private
persons." Oregon State Police Officers' Assn. v. State of Oregon, 323
Or 356, 364, 918 P2d 765 (1996) (citing cases). That is a significant question
in this case but one we have no occasion to resolve, given our holding that
there is no statutory contract right to confidentiality of the birth records. |
| [72] | *fn7
. The Court later clarified that the penumbral privacy right at issue in
Roe and Griswold should be viewed as located within the Fourteenth Amendment's
"concept of personal liberty and restrictions upon state action."
Whalen v. Roe, 429 US 589, 97 S Ct 869, 51 L Ed 2d 64 (1977), citing Roe.
In Whalen, the plaintiff challenged a state law that required doctors to
provide information to the state concerning any prescriptions of controlled
substances that were of the sort likely to be abused. The Court rejected
an argument that the law invaded a constitutional privacy right, because
the law had a legitimate purpose and there were safeguards against misuse
of the information and because the possibility for disclosure of the information
in question "existed under the prior law and is entirely unrelated
to" the new law. Id. at 600. The Court held that the impact of the
law was not "sufficient to constitute an invasion of any right or liberty
protected by the Fourteenth Amendment." Id. at 603-04. Whalen does
not support plaintiff's position in the present case. First, it does not
hold that a fundamental right to privacy is implicated by state public records
laws. Second, to the extent that it might suggest that any privacy rights
could ever be implicated by such laws, it would also seem to suggest that
the state's legitimate need for the records involved would outweigh any
privacy right. Id. |
| [73] | *fn8
. Plaintiffs also suggest that the statutes on which it relies for its obligation
of contracts claims created a privacy right that should be deemed to be
"fundamental" for purposes of federal constitutional analysis.
We disagree. Statutes do not create fundamental rights. See State v. Cookman,
324 Or 19, 36, 920 P2d 1086 (1996) (statute of limitations did not create
"fundamental right"); Griest v. Phillips, 322 Or 281, 300, 906
P2d 789 (1995) (tort claim limitation did not infringe on fundamental right
because "the right to collect damages for wrongful death is a statutory
right only"). |
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