Promise DOE, et al., Appellees, v. Donald SUNDQUIST, et al., Appellants.
Supreme Court of Tennessee, at Nashville.
Sept. 27, 1999.
2 S.W.3d 919
Larry L. Crain, American Center for Law and Justice, Brentwood, Kevin H. Theriot, Panama City Beach, Florida, for appellees.
Frederick F. Greenman, Jr., Deutsch, Klagsbrun & Blasband, New York, New York, Robert D. Tuke, Tuke, Yopp & Sweeney, Nashville, Tennessee, Harlan Dodson, III, Anne C. Martin, Julie K. Sandine, Dodson, Parker & Behm, Nashville, for amici curiae, Teresa Evetts Horton, et al.
OPINION
ANDERSON, Chief Justice.
We granted this appeal to decide whether legislation1 allowing disclosure of sealed
The trial court dismissed the plaintiffs’ action for injunctive and declaratory relief, holding that the legislation did not impair the plaintiffs’ vested rights or their rights to privacy under the
We agree with the trial court that retrospective application of legislation allowing disclosure of adoption records to adopted persons over the age of 21 does not impair the vested rights of birth parents in violation of article I, section 20 of the
BACKGROUND
In 1995, the Tennessee Legislature enacted several new statutory provisions and amendments regarding the law of adoption. See
(1)(A) All adoption records ... shall be made available to the following eligible persons: (i) [a]n adopted person ... who is twenty-one (21) years of age or older ...; (ii) [t]he legal representative of [such] a person ...;
(B) Information ... shall be released ... only to the parents, siblings, lineal descendants, or lineal ancestors, of the adopted person ..., and only with the express written consent ... [of] the adopted person....
Id. The new law also provides for a “contact veto,” under which a parent, sibling, spouse, lineal ancestor, or lineal descendant may register to prevent contact by the adopted person.
In March of 1997, a group of plaintiffs filed an action in Davidson County for declaratory and injunctive relief, challenging the constitutionality of the disclosure portion of the new law.2 Plaintiff Promise Doe alleged that she was a birth parent who surrendered a child for adoption in 1990 with the assurance that the information she provided would remain confidential and sealed and could not be accessed by the child or the child‘s father. Plaintiff Jane Roe, a birth parent who surrendered a child for adoption in 1956, alleged that she had signed some papers after giving birth but was advised that the child had died. Roe also alleged that she was contacted by the Tennessee Department of Human Services in 1988 regarding her biological child‘s requests for identifying information.3
The plaintiffs argued that they had a vested right in the confidentiality of their identity under the law in effect at the time they surrendered children for adoption and that retrospective application of the 1995 statute violates article I, section 20 of the
After initially granting a temporary restraining order that prevented disclosure of the records, the trial court denied the plaintiffs’ request for a temporary injunction. The trial court concluded (a) that the plaintiffs failed to establish they had a vested right to confidential records under prior law that would invalidate the new law as retrospective legislation under article I, section 20 of the
The Court of Appeals issued a stay pending disposition of the appeal.4 The court then concluded that the statute in question violated article I, section 20 for the following reasons:
[W]e find that the retrospective application of Section 36-1-127(c) does impair the vested rights of birth parents who surrendered their children for adoption under former law. Under the prior law, these birth parents had a reasonable expectation that any identifying information would remain confidential if they so desired.... [T]he DHS regulation mandating that birth parents be assured of the confidential aspects of the adoption-related services ... adopted in 1988 ... is indicative of the expectation of confidentiality prevalent under the prior law. The birth mother plaintiffs all proclaim that they were assured confidentiality and expected the same under that law. We find that this interest in the confidentiality of identifying information is a proper interest for the state to recognize and protect. Life-changing decisions were made based upon this expectation and to now deprive those who relied upon their legitimate expectation under the law would be to deprive them of a vested right.
The Court of Appeals specifically limited its holding to the plaintiffs who were birth parents. We granted review to consider this important issue of first impression.
ANALYSIS
Standard of Review
This case is on appeal from the trial court‘s dismissal of the plaintiffs’ suit for failure to state a claim upon which relief can be granted.
History of Adoption Statutes in Tennessee
We begin by reviewing the history of adoption laws in Tennessee. In 1852, the General Assembly granted jurisdiction to circuit and county courts authorizing the adoption of children; the function of the court was to record the names of the parties and the terms of the adoption.
Later amendments provided that records were to be sealed but could be disclosed in the discretion of the court. In 1949, for instance, legislation provided that an adopted person over the age of 21 could petition the trial judge to review the records and to release any information the judge determined was in the best interest of the adopted person and the State of Tennessee.
Other amendments created more inroads into the confidentiality provisions of the adoption statutes. In 1982, an amendment allowed an adopted person to file a written request and to receive non-identifying information from the Department of Human Services about the adopted person‘s biological family.
As previously noted, the 1995 amendments mandate disclosure of records upon the request of an adopted person over the age of 21 without requiring a court order or consent of the biological parents.
Retrospective Legislation
Article I, section 20 of the
In considering whether a statute impairs a vested right under article I, section 20, we frequently have observed that statutes which are procedural or remedial in nature may be applied retrospectively. Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976). In general, a statute is procedural “if it defines the ... proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right.” Kuykendall v. Wheeler, 890 S.W.2d 785, 787 (Tenn. 1994) (citation omitted). A statute is remedial if it provides the means by which a cause of action may be effectuated, wrongs addressed, and relief obtained. Dowlen v. Fitch, 196 Tenn. 206, 211-12, 264 S.W.2d 824, 826 (1954). We have clarified, however, that even a procedural or remedial statute may not be applied retrospectively if it impairs
Our case law indicates that deciding whether a “vested right” exists and has been impaired by retrospective application of a statute entails consideration of many factors, none of which is dispositive. E.g., Morris, 572 S.W.2d at 907 (focusing on plaintiff‘s “vested right” to maintain an already filed cause of action despite new law that effectively dismissed the suit and prevented its refiling due to a shorter statute of limitations); Saylors, 544 S.W.2d at 610 (analyzing the substantive/procedural distinction in determining whether a statute impaired a vested right or contractual obligation); Ford Motor Co. v. Moulton, 511 S.W.2d 690, 695-97 (Tenn. 1974) (analyzing whether legislation deprived a person of his reasonable expectations under the prior law). In short, there is no precise formula to apply in making this determination.
We therefore agree with the trial court that it is useful to employ a multi-factor analysis, such as that enunciated in Ficarra v. Department of Regulatory Agencies, 849 P.2d 6 (Colo. 1993):
[I]n determining whether a retroactive statute impairs or destroys vested rights, the most important inquiries are (1) whether the public interest is advanced or retarded, (2) whether the retroactive provision gives effect to or defeats the bona fide intentions or reasonable expectations of affected persons, and (3) whether the statute surprises persons who have long relied on a contrary state of the law.
Id. at 16 (alteration in original) (citation omitted). We add to these factors, which encompass the principles discussed in our case law, an additional factor discussed above: the extent to which a statute appears to be procedural or remedial. E.g., Kuykendall, 890 S.W.2d at 787.
In considering the first factor, we observe that the stated primary purpose of the new law reflects consideration of the public interest:
[t]he primary purpose of this part is to provide means and procedures for the adoption of children and adults that recognize and effectuate to the greatest extent possible the rights and interests of persons affected by adoption, especially those of the adopted persons, which are specifically protected by the constitutions of the United States and the state of Tennessee....
[t]he purpose of this part shall also be to favor the rights of adopted persons or other persons for whom any closed records are maintained and their families to obtain information concerning the lives of those persons and to permit them to obtain information about themselves from the adoption records, sealed records, sealed adoption records, or post-adoption records to which they are entitled, but also to recognize the rights of parents and adopted persons not to be contacted by the persons who obtain such information, except in compliance with this part.
The second and third factors—the intentions or reasonable expectations of affected persons, and the surprise to persons who had relied on a contrary state of the law—are obviously related to some degree. The Court of Appeals’ decision largely focused on its conclusion that the birth parents had a reasonable expectation of confidentiality based on the law as it existed when they surrendered their children for adoption. In our view, the Court of Appeals’ analysis is flawed because it does not fully take into account the history of adoption laws in this State.
Finally, we conclude that the 1995 amendments are both procedural and remedial. Under former statutes, disclosure of records required a judicial determination that disclosure was in the best interest of the adopted person and the public. Upon such a determination, there was no requirement that the birth parents or other individuals be notified or have the option to register a “veto” preventing contact. The new law, on the other hand, reflects the legislature‘s view that the disclosure of records is in the best interest of the adopted person and the public. It mandates disclosure of records if requested by an adopted person 21 years of age or older, yet, unlike prior law, balances disclosure by allowing a “veto” that prevents contact with the adopted person.
Accordingly, we have considered the public interest advanced by the 1995 legislation, the reasonable expectations of persons affected by the legislation, the surprise to persons relying on the statutory provisions in effect prior to the effective date of this legislation, and the extent to which the new law is procedural or remedial in nature. We conclude that retrospective application of the legislation now codified in
Right to Privacy
The plaintiffs assert that disclosure pursuant to
In Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), we recognized that, although a right to privacy is not mentioned in either the federal or Tennessee Constitutions, “there can be little doubt about its grounding in the concept of liberty reflected in those two documents.” Id. at 598. We observed that “the notion of individual liberty is ... deeply embedded in the Tennessee Constitution” and concluded “that there is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights.” Id. at 599, 600. Although Tennessee‘s right of privacy incorporates some of the features of the right to privacy
As the plaintiffs argue, and the State concedes, the right to privacy under the
The plaintiffs argue that disclosure of adoption records invades the rights to familial privacy by impeding a birth parent‘s freedom to determine whether to raise a family and disrupting both biological and adoptive families by releasing identifying information previously sealed. We disagree.
The disclosure provisions reflect the legislature‘s determination that allowing limited access to adoption records is in the best interest of both adopted persons and the public. The provisions do not, however, allow unfettered access in disregard of the sensitivities and privacy interests involved. To the contrary, disclosure is limited to an adopted individual or that individual‘s legal representative, 21 years of age or older. Moreover, extensive provisions are included to allow a birth parent or other related individual to register a “contact veto” and eliminate or reduce the risk that disclosure of identifying information will have a disruptive effect upon the lives of the biological and adoptive families.6 Similarly, the plaintiffs’ disruption argument is dubious in that it is predicated upon a speculative risk of disruption that may or may not occur a minimum of 21 years after the adoption occurs. In short, the statute does not impede traditional familial privacy rights such as marrying, having children, or raising children.
The plaintiffs also argue that disclosure impedes the right to procreational privacy by impeding the birth parents’ decision of whether to carry a child to term. We again disagree.
The decision of whether to carry a pregnancy to term implicates privacy rights under the federal and state constitutions. Davis, 842 S.W.2d at 601. This decision differs fundamentally from the decision of whether to surrender a child for adoption. The right of adoption is statutory. It was created to protect the interests of children whose parents are unable or unwilling to provide for their care, Young v. Smith, 191 Tenn. 25, 33, 231 S.W.2d 365, 369 (1950), and not to advance a procreational right to privacy of the biological parent. Although the prospect of having the records of the adoption released to the child 21 years later may have some bearing on the decision, it is far too speculative to conclude that it interferes with the right to procreational privacy. Moreover, the prospect of disclosure under the legislation at issue in this case is nothing new; as already discussed, disclosure has long been permitted in some form under Tennessee statutory law.
Finally, the plaintiffs contend that disclosure violates a privacy right to non-disclosure of personal information. We have held, however, that the confidentiality of records is a statutory matter left to the legislature. E.g., Tennessean v. Electric Power Bd. of Nashville, 979 S.W.2d 297, 300-01 (Tenn. 1998); see also Thompson v. Reynolds, 858 S.W.2d 328 (Tenn. Ct. App. 1993). Absent a fundamental right or other compelling reason, we reject the invitation to extend constitutional protection to the non-disclosure of personal information.7
We conclude that the disclosure of adoption records as provided in
Costs of appeal are taxed to the appellees, for which execution shall issue if necessary.
DROWOTA, BIRCH, HOLDER, and BARKER, JJ., concur.
ANDERSON
CHIEF JUSTICE