Oregon Adoptee Rights Initiative
Measure 58
Our Birth Certificate: Our Right

Report on the Preliminary Hearing
January 19, 1999

Measure 58, which unconditionally restored to adult adoptees the right to request and receive a copy of their original birth certificate was passed in Oregon on November 3rd, 1998 by a 57 % majority vote of the Oregon people. An injunction halting the law was filed by Franklin Hunsaker representing seven birth mothers two days before the law was to go into effect.

On January 19th, we had a preliminary hearing in the chambers of Judge Alvin Norblad of Salem. Present were: Kate Georges, attorney for the the Attorney General of Oregon (Hardy Myers). The Attorney General's office is officially defending Measure 58 because

Also present was Franklin Hunsaker, attorney for the plaintiffs (the seven birth mothers who are suing the state) his aide Loren Podwill, and Thomas McDermott, a lawyer working with the state and with US.

Judge Norblad was of course present, as was I, Helen Hill, and about 20 birth mothers, adoptees, adoptive parents and various supporters of Measure 58.

What did this hearing accomplish, what was it for?

The primary purpose of this preliminary hearing was so that our side, through our lawyer Mr. McDermott, could officially ask for intervenor status in this case. The State (represented by Kate George) wanted to see our inclusion as well, and formally asked the judge that we be allowed in. The parties seeking intervenor status were:

  1. ) Helen Hill. I was seeking status as chief petitioner and author of the measure.
  2. ) Curtis Endicott, an Oregon born adoptee who has not been able to access his birth certificate for 42 years.
  3. ) Susan Updike, an Oregon birth mother who relinquished in this state
  4. ) The general membership of the Oregon Adoptive Rights Association, represented by President Delores Teller.

Mr. Hunsaker and his partner, Loren Podwill, had many reasons why the judge should NOT grant any of us status in the case. The state's attorney argued FOR our inclusion, as did, of course, our lawyer.

The importance of intervenor status

Our official inclusion as court-recognized intervenors in the upcoming trial was a VERY important first step. Getting status in the case means

  1. ) that we can be called on to testify
  2. ) that our lawyer, Mr. McDermott, can work with the state's attorney, who has little or no knowledge of adoptee rights issues, and WANTS our help in developing the strategy to effectively defend the law.
  3. ) Perhaps most importantly, getting status means that in the event of a ruling in the plaintiffs favor (that is, if (longshot!) Hunsaker wins this round), we would have recourse to appeal. The state, acting alone, would probably choose NOT to appeal. They are busy, they have other things going, and the state generally upholds the decisions of its judges. State's just don't appeal cases, usually. But with OUR lawyer in the case, he has the right to appeal, which of course we will immediately do in the unlikely event that the judge does not rule in favor of the constitutionality of Measure 58.

Other points discussed

In addition to the various arguments presented for and against the inclusion of intervenors, the lawyers present (Georges, McDermott, Hunsaker and Podwill) discussed at length with the judge such issues as the possibility of a citizen's advisory jury being present for the trial. This is sort of the judge's way of taking the heat off his decision, whatever it may be, because, as he pointed out, this is a case of national significance and great media attention, and his ruling, either way, will LOOK better for him if he has been in consultation with an advisory jury. The jury will have no official duty or control over the decision making process, they are there to hear the evidence and advise and discuss the case with the judge.

Also discussed was the possibility of a "summary judgement" which, from what I understand, would be an early decision on the judge's part to make a judgement based, not on a full fledged trial with witnesses, etc., but on a summation of the evidence he is presented with by both sides.

Also discussed was the METHOD of testimony and discovery. This case is highly complicated because the plaintiffs, that is, the birth mothers who brought suit, wish to remain anonymous. That means that we will have a very difficult time questioning them, or even verifying that they are who they say they are. Our lawyer, and the lawyer for the attorney general, is very concerned, and rightly so, about how we are to be treated fairly when the plaintiffs are seven women who are trying to protect their identity. This is a very tricky situation, and Hunsaker is going for the emotional, but impossibly difficult request that their identity be protected at all costs because these poor women are "scared to death" of being discovered. But on the other hand, our side says we have a right to meet our accusers, and we need to be able to have all the information at our disposal so that we may be sure their stories are, indeed, factual. This is the very least we need. Otherwise, the trial will be a complete sham. So, there was a lot of discussion about how to accomplish a fair trial.

Results of preliminary hearing:

Ten days after the hearing, Judge Norblad officially ruled that all four parties seeking intervenor status would be allowed in the case, which was very good news, and Hunsaker's first defeat. Our lawyer, Mr. McDermott, is now officially part of the case, and obviously now, the result of the first hearing, date NOT YET SET, will be an automatic appeal. We KNOW Hunsaker will appeal when he loses. Of course, we will appeal as well in the unlikely case that the judge rules AGAINST A MAJORITY VOTE OF THE PEOPLE OF OREGON. The losing side has the right to an automatic appeal, and will doubtless exercise that right.

We expect this to go to the Oregon Supreme Court, possibly even the U.S. Supreme Court simply because of the tenacity of Franklin Hunsaker and his backers, the NCFA. The NCFA is a Washington D.C. based adoption industry organization, it stands for the National Council for Adoption (NCFA) and is headed by Bill Pierce. The NCFA has been responsible for squashing adoptee civil rights legislation in all states for at least a decade. Measure 58 was a severe blow to their, till now, tightly held control of the issue.

Legal scholars everywhere say that the constitutionality of Measure 58 is unassailable, (that is, we should have no problem winning at every step). We just have to hold on, be patient, and go through the process.

The lawyers are having another meeting with the Judge on April 7th, to discuss the technicalities of this case in greater detail. Most likely a hearing date will be set at that time as well.

About Mr. Thomas McDermott

Rest assured that our lawyer, Mr. McDermott, is fabulous. There is no other word for him. He is an adoptive father with two wonderful boys, the youngest one shows up at many events with his dad and is very eloquent about adoptee civil rights. He thinks the world of his dad, as well. We are in good hands. I just wish OUR lawyer would start getting some of the national air time that Hunsaker is enjoying..... The media, as ever, seems reluctant to give us even a fair shake.

But, as Hardy Myers, the Oregon Attorney General said on the Today show this past Monday,

"We don't think in this setting, that (the claim to privacy) is constitutionally valid. The voters have spoken. Our formal position is to seek to uphold the legislation."

Gooooooo Hardy!!!

We're doing well, just working through the intricate and necessary system of checks and balances that our justice system is founded on. Don't be bitter, folks, be patient. If you want to contribute to the legal defense fund, I am in the process of forming another political action committee which will be expressly for repayment of Mr. McDermott's legal expenses. He has generously offered to defend this law pro bono, or for the public good (free), but he still will have filing fees and out of pocket expenses that we will want to reimburse him for.

Thanks, and I'll talk to you all later.

Tune into the Leeza show this Wednesday, Mar 24, 9am on NBC (after the Today Show) for a lively debate about Oregon's Measure 58 with Helen Hill, Sara Safian, and Carol Sandusky.

Helen Hill

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