Measure 58 Lawsuit


                       FOR THE COUNTY OF MARION

JANE DOES 1, 2, 4, 5, 6, and 7     |
                                   |    No.
                Plaintiffs,        |
                                   |    SUMMARY JUDGMENT
      v.                           |    
KITZHABER, Governor of Oregon;     |
and EDWARD JOHNSON, State          |
Registrar of the Center for Health |
Statistics in Oregon,              |
                Defendants.        |

Dear Counsel:

Plaintiffs' Motion for Summary Judgment is denied. Defendants' and Intervenors' Cross Motion for Summary Judgement is allowed in all aspects. Counsel for Defendants may prepare an appropriate Order and Judgment.

My reasons for this decision are as follows. First, the appropriate public policy for Oregon is ordinarily to be decided by the legislature through the statutory process, and by the people through the initiative and referendum process. Public policy is not for this or any other court to decide unless the people and the legislature have been silent on the matter. In this case, the people have spoken through Ballot Measure 58, and the legislature has just recently indicated its concurrence through House Bill 3194, which makes minor amendments to Ballot Measure 58.

Measure 58 is apparently an attempt to strike a balance between protecting the individuals parent's rights to privacy and confidentiality and facilitating the individual adoptee's rights to information as to their parental origin. Although some, and perhaps many, may now quarrel with where that balance has been struck, this court may not set aside Measure 58 unless it runs afoul of the Oregon or United States Constitutions. It is my conclusion that it does not.

Plaintiffs first claim a violation of the Contract Clauses of the Oregon and U.S Constitutions. Plaintiffs would read ORS 109.430 to establish a permanent and absolute right to privacy and confidentiality of birth parents, adoptees, and adoptive parents. No such absolute and permanent language appears in ORS 109.430 and, in fact, that statute was adopted in the context of an overall legislative scheme which broadened rather than restricted, access to adoption information in 1983. Additionally, before 1983, and in fact ever since the first statutory restrictions on adoption information in 1957, inspection of such records by *any* person was permitted without restriction by order of any judge of any court of competent jurisdiction.

Moreover, there is nothing in ORS 109-430 which is *necessarily* in conflict with Ballot Measure 58. Even after the enactment of Ballot Measure 58, nearly all the former statutory protections of the privacy and confidentiality of birth parents, adoptees, and adoptive parents remain. Only one individual, the adult adopted child, is given additional rights to access his or her own original birth records. All other access remains precisely as restricted before.

Plaintiffs have failed to demonstrate either any contractual right to absolute privacy and confidentiality, or any impermissible impairment of any such rights.

Second, plaintiffs argue that Ballot Measure 58 violates a zone or penumbra of privacy around intimate personal matters that is implied by the combined effect of various provisions of the Oregon and Federal Constitutions which recognize other, more specific individual rights. Neither the Oregon Supreme Court nor the United States Supreme Court have ever recognized such a broad reaching penumbra. Nor is it likely that either would in this context. Even assuming birth records to be an intimate personal matter, the effect of Ballot Measure 58 is only to give access to the person born, not to the general public. And significantly, there was no privacy or confidentiality at all which was attached to adoption records at the time of the enactment of either of these Constitutions. Adoption records were originally public in Oregon, and, in fact, were published annually up until 1921.

Third, Plaintiffs argue that Measure 58 deprives Plaintiffs of Equal Protection of the law in violation of the Oregon and U.S Constitutions. This argument falls because Plaintiffs are not members of any previously recognized suspect class, and the balance struck by Measure 58 is not unreasonable in light of the State's responsibility to protect the interests of adoptees as well as those of birth parents.

Fourth, Plaintiffs assert that Ballot Measure 58 violates the Due Process clause of the Federal Constitution by impairing fundamental personal liberties without being rationally related to a legitimate governmental purpose. Ballot Measure 58, however, does not impermissably impair any previously recognized fundamental personal liberty, and it is rationally related to the government's interest in regulating adoptions.

Fifth, Plaintiffs also argue that Ballot Measure 58 unconstitutionally interferes with Plaintiffs' rights to freely exercise their religion and their rights of conscience. The Measure, however, is a religiously neutral law of general applicability, and therefore does not violate any protections afforded to religious beliefs and practices by the Oregon and U.S Constitutions.

Finally, Plaintiffs claim that the State is "estopped" from enforcement of Measure 58 because of prior laws and representations regarding Plaintiff's privacy and confidentiality rights. Assuming that the State could ever be estopped from changing any law, such an estoppel would create only a defense and not an affirmative cause of action against that public body. Equitable estoppel has never been a recognized cause of action even against a private entity; only a potential defense to an opponent's claims.

Accordingly, this court finds that Defendants are now entitled to a summary judgement as a matter of law, and that there are no remaining questions of material fact which would justify a trial on the merits of this case.


Paul J. Lipscomb
Presiding Judge
Marion County Courts

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