Measure 58 Lawsuit

COMPLAINT

Table of Contents


             IN THE CIRCUIT COURT OF THE STATE OF OREGON

                       FOR THE COUNTY OF MARION

JANE DOES 1, 2, 3 and 4.          |
                                  |       No.
Plaintiffs,                       |
                                  |       COMPLAINT
v.                                |
                                  |       (Declaratory Relief and 
THE STATE OF OREGON; JOHN A.      |       Permanent Injunctive Relief)
KITZHABER, Governor of Oregon;    |
and EDWARD JOHNSON, State         |       (Not Subject to Mandatory
Registrar of the Center for Health|       Arbitration)
Statistics in Oregon.             |
                                  |
                Defendants.       |
__________________________________|

NATURE OF ACTION

1.

.

This is an action brought by Plaintiffs Jane Does 1, 2, 3 and 4 ("Plaintiffs") seeking declaratory relief under Oregon's Declaratory Judgment Act, ORS 28.010, et seq. and injunctive relief. This lawsuit challenges the constitutionality of Measure No. 58, which unless invalidated will retroactively unseal and permit disclosure of the unaltered, original and unamended birth certificates of adopted persons 21 years of age or over who were born in the State of Oregon (thus destroying the privacy and confidentiality of the identity of birth mothers who previously have placed their biological children for adoption). Voters of the State of Oregon passed Measure No. 58 on November 3, 1998.

2.

The full text of Measure No.58, a certified copy of which is attached to the original of this Complaint as Exhibit A, is as follows:

Upon receipt of a written application to the state registrar, any adopted person 21 years of age and 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.l46. Contains no exceptions.

3.

Plaintiffs assert that Measure No 58 is unconstitutional because it is a law (1) impairing the obligations of contracts in violation of Article 1, Section 21, of the Oregon Constitution; (2) significantly invading the privacy rights of birth mothers who have given and/or who decide to surrender their children for adoption in violation of the Oregon Constitution, including Article 1. Sections 1, 2, 20, 21 and 33 of the Oregon Constitution; (3) depriving birth mothers of equal protection of the law in violation of Article 1, Section 20, of the Oregon Constitution; (4) interfering with birth mothers' rights to freedom of conscience in violation of Article 1, Sections 2 and 3, of the Oregon Constitution; (5) impairing the obligations of contracts in violation of Article I, Section 10, of the United States Constitution; (6) significantly invading the privacy rights of birth mothers who have given and/or who decide to surrender their children for adoption, in violation of the Fourteenth Amendment to the United States Constitution; (7) depriving mothers of equal protection of the law in violation of the Fourteenth Amendment to the United States constitution; (8) substantially interfering with the free exercise of birth mothers' religious beliefs in violation of the free exercise clause of the First Amendment to the United States Constitution; and (9) the enforcement of which would violate principles of equitable estoppel.

4.

Under Article IV. Section 1(45(d), of the Oregon Constitution, Measure No. 58 will go into effect on December 3, 1998, 30 days after it was approved by Oregon voters. On or before December 3. 1998, Defendant Kitzhaber will have proclaimed the enactment of Measure No. 58 under ORS 254.555(2)(b).

5.

Plaintiffs seek a declaration that Measure No. 58 violates (1) Article I. Section 21, the Contract Clause, of the Oregon Constitution; (2) the right to privacy guaranteed in the Oregon Constitution, including Article 1, Sections 1.2, 20, 21 and 33 of the Oregon Constitution; (3) equal protection of the law as set forth in Article I, Section 20, of the Oregon Constitution; (4) the right to freedom of conscience as provided in Article 1. Sections 2 and 3 of the Oregon Constitution; (5) Article I, Section 10, the Contract Clause, of the United States Constitution; and (6) the right of privacy as guaranteed by the Fourteenth Amendment to the United States Constitution; (7) the equal protection clause of the Fourteenth Amendment of the United States Constitution; (8) the free exercise clause of the First Amendment to the United States Constitution; and (9) principles of equitable estoppel. Plaintiffs also seek an injunction prohibiting the Defendant State of Oregon, as well as the Defendants Governor and State Registrar, from enforcing the provisions of Measure No. 58.

6.

Defendants have control and custody over the original birth certificates of adopted persons born in the State of Oregon. Commencing on December 3, 1998, Defendants will accept requests from and issue unaltered, original and unamended birth certificates to any adopted person 21 years or age and older born in the State of Oregon who makes such a request by written application to the State Registrar. An actual, justiciable controversy exists between the parties over Defendants' implementation of Measure No. 58.

NAMED PARTIES

7.

A. Plaintiff Jane Doe 1

Plaintiff Jane Doe 1 (a pseudonym) is and at all material times has been a resident of the State of Oregon. She is a birth parent who, in 1961 (over 21 years ago), gave birth to a child in Oregon and surrendered the child for adoption. At the time Plaintiff Jane Doe 1 surrendered her child for adoption in Oregon, representatives of the hospital where the birth occurred expressly promised Plaintiff Jane Doe 1 that her identity as the child's birth mother would remain confidential and that her privacy would be protected from any further contact with the child.

8.

Pursuant to and at the time of surrendering her child for adoption, a religious advisor on the staff of the hospital counseled and prayed with plaintiff Jane Doe 1 about the avenue of adoption. Also, at the same time, plaintiff Jane Doe 1 conferred with the physician on the hospital staff that delivered her child about the possibility of adoption. At that time, the religious advisor affiliated with the hospital and the hospital's physician assured plaintiff Jane Doe 1 that her identity would remain confidential and that her privacy would be protected from future contact with the child, if the child were placed for adoption. Such promises and expectations of confidentiality and privacy played a significant role in her decision to place her child for adoption. Plaintiff Jane Doe 1 has not disclosed to her spouse or her other (declared) biological children that she previously gave birth to a child and surrendered it for adoption.

9.

Plaintiff Jane Doe 1 is concerned that she will suffer immediate and irreparable harm through the disclosure of her identity and invasion of her privacy if the unaltered, original and unamended birth certificate reflecting the birth of her above child whom she surrendered for adoption is issued, as provided in Measure No. 58. She has no adequate remedy at law. She has suffered emotional distress and anguish out of concern that the implementation of Measure No. 58 will severely compromise her present life course and will significantly and irreparably interfere with the relationships she presently enjoys with her spouse and other (declared) biological children. Plaintiff Jane Doe 1 is proceeding under a pseudonym because it is essential to her that her identity and privacy, as well as her decision to place her child for adoption, remain confidential and private.

10.

B. Plaintiff Jane Doe 2

Plaintiff Jane Doe 2 (a pseudonym) is and at all material times has been a resident of the State of Oregon. She is a birth parent who, in 1984, gave birth to a child in Oregon and surrendered the child for adoption through a licensed Oregon adoption agency. In making that decision to place her child for adoption, Plaintiff Jane Doe 2 was assured that, under Oregon law, her identity would remain confidential from the adoptive parents and the child after the adoption. Such promises and expectations of confidentiality and privacy played a significant role in her decision to place the child for adoption. She has no adequate remedy at law and believes that, if Measure No. 58 becomes law and goes into effect, those promises and expectations of confidentiality and privacy will be breached. She is proceeding under a pseudonym because it is essential to her that her identity and privacy, as well as her decision to place her child for adoption. remain confidential and private.

11.

C. Plaintiff Jane Doe 3

Plaintiff Jane Doe 3 (a pseudonym) is and at all material times has been a resident of the State of Oregon. She is a birth parent who, in 1993, gave birth to a child in Oregon and surrendered the child for adoption through a licensed Oregon adoption agency. In making that decision to place her child for adoption, Plaintiff Jane Doe 3 was assured that, under Oregon law, her identity would remain confidential from the adoptive parents and the child after the adoption. Such promises and expectations of confidentiality and privacy played a significant role in her decision to place the child for adoption. She has no adequate remedy at law and believes that, if Measure No. 58 becomes law and goes into effect, those promises and expectations of confidentiality and privacy will be breached. She is proceeding under a pseudonym because it is essential to her that her identity and privacy, as well as her decision to place her child for adoption, remain confidential and private.

12.

D. Plaintiff Jane Doe 4

Plaintiff Jane Doe 4 (a pseudonym) is and at all material times has been a resident of the State of Oregon. She is a birth parent who, in 1994, gave birth to a child in Oregon and surrendered that child for adoption through a licensed Oregon adoption agency. In making that decision to place her child for adoption, Plaintiff Jane Doe 4 was assured that, under Oregon law, her identity would remain confidential from the adoptive parents and the child after the adoption. Such promises and expectations of confidentiality and privacy played a significant role in her decision to place the child for adoption. She has no adequate remedy at law and believes that, if Measure No. 58 becomes law and goes into effect, those promises of confidentiality and privacy will be breached. She is proceeding under a pseudonym because it is essential to her that her identity and privacy, as well as her decision to place her child for adoption. remain confidential and private.

13.

E. Defendant John A. Kitzhaber

Defendant John A. Kitzhaber is the Governor of the State of Oregon. He is the chief executive officer of the State. As such, he is constitutionally mandated to ensure that the laws of the State, including Measure No. 58, are fully implemented and faithfully executed. Defendant Kitzhaber is sued in his official capacity.

14.

F. Defendant Edward Johnson

Defendant Edward Johnson is the State Registrar of the Center for Health Statistics in Oregon. As such, he is responsible for carrying out the provisions of the laws of the State. including Measure No. 58, regarding the issuance of certified copies of birth certificates. Defendant Johnson is sued in his official capacity.

15.

G. Defendant State of Oregon

Defendant State of Oregon is named as a party for purposes of seeking a declaration that Measure No. 58 is unconstitutional, as well as for seeking an injunction prohibiting the State of Oregon, as well as its Governor and State Registrar, from enforcing the provisions of Measure No. 58.

BACKGROUND OF RELEVANT STATUTORY SCHEME

16.

Plaintiffs in this case are women who for a variety of reasons (i.e., because of their age or due to psychological, emotional, familial and/or economic reasons, as well in part because their religious or conscientious beliefs ruled out abortion as an option for them) have in the past decided to place their children for adoption.

17.

For the period of time from 1957 through 1975, women electing to place their children for adoption in the State of Oregon, such as Plaintiff Jane Doe 1, were protected under the following Oregon statutory provisions:

7.211 Separate records in adoption cases; accessibility of records limited. The cleric of any court having jurisdiction over adoption cases shall keep a separate journal, index and fee book in all cases of adoption filed in such court. The journal, index and fee book shall not be subject to the inspection of any person, except upon order of the court. Adoption proceedings shall not be entered upon the general journal of the court, nor shall the clerk disclose to any person, without the court order, any information appearing in the adoption journal, index or fee book. The clerk or any other person having custody of any records or files in such cases shall not disclose them to any person without the court order. Nothing contained in this section shall prevent the cleric from certifying copies of a decree of adoption to the petitioners in such proceeding or their attorney. At the time of the entry of any final decree of adoption. the clerk or other person having custody of the files in such cases shall cause all records, papers and files relating to the adoption to be sealed in the record of the case and such sealed records, papers and files shall not be unsealed, opened or subject to the inspection of any person except upon order of a court of competent jurisdiction. (1957 c.412 3)

* * * *

432.420 Access to adoption records. [sealed adoption documents, including the original birth certificate] may be opened by the State Registrar only upon an order of a court of competent jurisdiction. (1957 c.193 1)

18.

For the period of time from 1983 to 1995, women electing to place their children for adoption in the State of Oregon, such as Plaintiffs Jane Does 2, 3 and 4, were protected under the following Oregon statutory provisions:

7.211 Separate records in adoption cases; accessibility of records limited. (1) The cleric or court administrator of any Court having jurisdiction over adoption cases shall keep separate records in all cases of adoption filed in such court. The records shall not be subject to the inspection of any person, except upon order of the court. Adoption proceedings shall not be entered upon the general records of the court, nor shall the clerk or court administrator disclose to any person, without the court order, any information appearing in the adoption records. The clerk, court administrator or any other person having custody of any records or files in such cases shall not disclose them to any person without the court order. Nothing contained in this section shall prevent the clerk or court administrator from certifying copies of a decree of adoption to the petitioners in such proceeding or their attorney. At the time of the entry of any final decree of adoption, the clerk, court administrator or other person having custody of the records or files in such cases shall cause all records, papers and files relating to the adoption to be sealed in the record of the case and such sealed records, papers and files shall not be unsealed, opened or subject to the inspection of any person except upon order of a court of competent jurisdiction.

(2) The provisions of subsection (1) of this section do not apply to the disclosure of information under ORS 109.425 to 109.500 [pertaining to voluntary adoption registries]. (1983 c.672 17; 1985 c.540 10)

* * * * *

109.430. Policy for ORS 109.425 to 109.500. 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 at 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 or putative father 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 ORS 7.211, 109.425 to 109.500 and 432.420 is to:

(1) Set up a voluntary adoption registry where birth parents, putative fathers and adult adoptees may register their willingness to the release of identifying information to each other.

(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 or putative father and the adult adoptee are registered;

(3) Provide for the transmission of nonidentifying health and social and genetic history of the adult adoptees, birth parents, putative fathers and other specified persons; and

(4) Provide for disclosure of specific identifying information to Indian tribes or governmental agencies when needed to establish the adoptee's eligibility for tribal membership or for benefits or to a person responsible for settling an estate that refers to the adoptee. (1983 c.672 1; 1989 c.372 5)

* * * * *

432.230. When new certificate issued; content; amendment upon adoption; delayed certificate. (1) The State Registrar shall establish a new certificate of birth for a person born in this state when the state registrar receives either of the following;

* * * * *

(2) When a new certificate of birth is established. the actual place and date of birth shall be shown. The new certificate shall be substituted for the original certificate of birth in the files, and the original certificate of birth * * * shall not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule of the state registrar.

(6) When a new certificate of birth is established by the state registrar, all copies of the original certificate of birth in the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the state registrar as the state registrar shall direct. (1983 c.709 1la)

* * * * *

432.420. Access to adoption records. [Sealed adoption documents, including the original birth certificate] may be opened by the State Registrar only upon an order of a court of competent jurisdiction or when requested by an agency operating a voluntary adoption registry as defined in ORS 109.425 for the purpose of facilitating the identification of persons registering under the provisions of ORS 109.425 and 109.435 to 109.500. (1983 c.672 18)

* * * * *

109.440. Information confidential; exceptions. A person or agency shall not disclose any confidential information relating to an adoption except as provided in ORS 109.425 and 109.435 to 109.500 [pertaining to voluntary adoption registries] or pursuant to a court order. (1933 c.672 4)

FIRST CLAIM FOR RELIEF
(Declaratory Relief-constitutional Violations)

19.

Plaintiffs reallege and incorporate by reference paragraphs 1 through 18 above.

COUNT I
(Violation of Oregon Constitution, Art. I, 21)

20.

Measure No. 58, which on its face applies retroactively, impermissibly impairs the obligations of the contracts entered into by Plaintiffs and others similarly situated for the surrender of their respective children to adoption. Measure No. 58 impairs a vested right of confidentiality and privacy held by Plaintiffs and others similarly situated in their respective contracts of adoption. Plaintiffs seek a declaration that Measure No. 58 violates the Contract Clause of Article 1, Section 21, of the Oregon Constitution, and is therefore unconstitutional.

21.

At the time that Plaintiffs decided to surrender their respective children for adoption, they entered into a contract for the surrender of their children for adoption. Oregon statutory provisions governing the confidentiality and privacy of adoptions, then in place, were implied by law into and formed an integral part of Plaintiffs' contracts for the placement of their children for adoption. Pursuant to the contracts entered into by Plaintiffs to place their children for adoption, a material contractual term was that their identity as the birth mother would remain confidential and that their privacy would be protected from any further contact with their child, unless a court ordered otherwise or pursuant to mutual consent under voluntary adoption registries.

22.

Measure No. 58 violates the terms of privacy and confidentiality contained in Plaintiffs' contracts for the surrender of their respective children for adoption. Plaintiffs and others similarly situated are faced with the imminent threat of immediate and irreparable injury in that Plaintiffs and their respective families will suffer embarrassment, humiliation and mental anguish if Plaintiffs' respective identities are disclosed and the Unaltered, original and unamended birth certificates of their respective biological children who were surrendered for adoption are issued. Plaintiffs have no plain, speedy or adequate remedy at law.

23.

The effect of Measure No. 58 is to retroactively nullify the provisions and expectations of privacy and confidentiality contained in Plaintiffs' respective contracts for adoption of their children, as well as others similarly situated. Measure No. 58 fails to recognize and protect privacy and confidentiality terms that the contracting parties and others similarly situated agreed to and expected. If Measure No. 58 is allowed to be implemented, it will frustrate the objectively reasonable expectations of the contracting parties.

COUNT II
(Violation of Oregon Constitution, Art. I, 1, 2, 20, 21 and 33)

24.

Measure No. 58 unconstitutionally violates the confidentiality and privacy rights of Plaintiffs and others similarly situated. It does so through significantly burdening the fundamental right of birth mothers to choose adoption for their children, in violation of birth mothers' rights to liberty, privacy and procreational autonomy. Accordingly. Plaintiffs seek a declaration that Measure No. 58 is in violation of Article 1, Sections 1, 2, 20, 21 and 33, of the Oregon Constitution and that Measure No. 58 constitutes an unconstitutional invasion of Plaintiffs' rights to confidentiality and privacy as guaranteed under the Oregon Constitution.

COUNT III
(Violation of Oregon Constitution, Art. I, 20)

25.

Plaintiffs seek a declaration that Measure No. 58 deprives birth mothers of equal protection of the law as guaranteed by Article 1, Section 20, of the Oregon Constitution.

COUNT IV
(Violation of Oregon Constitution, Art. I, 2 and 3)

26.

Plaintiffs seek a declaration that Measure No. 58 violates birth mothers' rights to freedom of conscience as guaranteed by Article I, Sections 2 and 3, of the Oregon Constitution.

COUNT V
(Violation of U.S. Constitution. Art. I, 10)

27.

Plaintiffs reallege and incorporate by reference Paragraphs 21 through 23 above.

28.

Measure No. 58, which on its face applies retroactively, impermissibly impairs the obligations of the contracts entered into by Plaintiffs and others similarly situated for the surrender of their above respective children to adoption. Plaintiffs seek a declaration that Measure No 58 violates the Contract Clause of Article I, Section 10, of the United Stares Constitution and is, therefore, unconstitutional.

COUNT VI
(Violation of U.S. Constitution, 14th Amendment)

29.

Measure No.58 unconstitutionally violates the confidentiality and privacy rights of Plaintiffs and others similarly situated. It does so through significantly burdening the fundamental right of birth mothers to choose adoption for their children, in violation of their right to liberty, privacy and procreational autonomy. Accordingly, plaintiffs seek a declaration that Measure No. 58 violates the Fourteenth Amendment, Section 1, of the United States Constitution and is, therefore, unconstitutional.

COUNT VII
(Violation of U.S. Constitution, 14th Amendment)

30.

Plaintiffs seek a declaration that Measure No. 58 deprives birth mothers of equal protection of the law as guaranteed by the equal protection clause of the Fourteenth Amendment, Section 1, of the united States Constitution and is, therefore, unconstitutional.

COUNT VIII
(Violation of U.S. Constitution, 1st Amendment)

31.

Plaintiffs seek a declaration that Measure No. 58 significantly and impermissibly interferes with the free exercise of religious beliefs by birth mothers in violation of the free exercise clause of the First Amendment to the United States Constitution and is, therefore, unconstitutional.

COUNT IX
(Estoppel)

32.

Measure No.58 should be declared unenforceable because it violates basic principles of equitable estoppel. As referenced above, Oregon adoption laws, as well as the private contractual agreements of Plaintiffs and others similarly situated, affirmatively promised birth mothers in the past that their identity would remain confidential and private. Plaintiffs and others similarly situated decided to surrender their respective children for adoption in reliance on this promise. Defendants, therefore, are estopped from reneging on the obligation to maintain the confidentiality and privacy of the identity of these Oregon birth mothers through retroactively unsealing and permitting disclosure of the unaltered, original and unamended birth certificates of adopted persons 21 years of age or older.

SECOND CLAIM FOR RELIEF
(Injunction)

33.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 32 above.

34.

Unless Defendants are enjoined from enforcing or implementing the provisions of Measure No. 58, Plaintiffs will suffer irreparable injury Plaintiffs have no plain, speedy or adequate remedy at law.

THIRD CLAIM FOR RELIEF
(Attorney Fees)

35.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 34 above.

36.

This action is brought to vindicate and protect the constitutional rights of birth mothers in the State of Oregon who, with the express and implied promise of confidentiality and privacy, have elected to surrender their children for adoption by others, plaintiffs are therefore entitled to their reasonable attorney fees under the authority of Deras v. Myers, 272 Or 47, 66, 535 P2d 541 (1975).

WHEREFORE. Plaintiffs pray for judgment against Defendants as follows:

  1. That this Court declare Measure No. 58 unconstitutional and unenforceable;

  2. That this Court enjoin the Defendants from enforcing or implementing Measure No. 58;

  3. That this Court award Plaintiffs their reasonable attorney fees and costs; and

  4. For such other and further relief as the Court deems just and equitable.

DATED:	December 1, 1998.
                                   I. Franklin Hunsaker  72131
                                   Loren D. Podwill  84324
                                   BULLIVANT HOUSER BAILEY
                                   A Professional Corporation


                                   By _________________________
                                      I. Franklin Hunsaker
                                   By _________________________
                                      Loren D. Podwul
                                      Attorneys for Plaintiffs

                                      Trial Attorney; Loren D. Podwill


Back to Measure 58 Home Page.