Case Information
*1 This opinion is subject to revision before final publication in the Pacific Reporter.
In the Matter of the Adoption of B.Y., a minor child. _____________________________ J AKE S TRICKLAND , Appellant.
——————— No. 21030088 Filed August 11, 2015 ——————— Second District, Farmington The Honorable David R. Hamilton No. 112700011 ——————— Attorneys: Wesley D. Hutchins, West Jordan, for appellant Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellee ———————
A SSOCIATE C HIEF J USTICE L EE authored the opinion of the Court, in which C HIEF J USTICE D URRANT , J USTICE D URHAM , J USTICE P ARRISH ,
and J UDGE B LANCH joined.
J USTICE N EHRING , due to his retirement, did not participate; D ISTRICT J UDGE J AMES A. B LANCH sat.
J USTICE H IMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and accordingly did not
participate. ——————— A SSOCIATE HIEF J USTICE L EE , opinion of the Court:
This is an appeal from the denial of a motion to intervene in an adoption proceeding. The motion was filed by Jake Strick- land, the putative father of the child in question. The district court denied the motion on the ground that Strickland had failed to strictly comply with the statutory requirements in the Adoption Act for an unmarried putative father to preserve his right to con- test an adoption.
¶2 In so doing, the district court also rejected Strickland‘s at- tempt to excuse his failure to fulfill the requirements of the Act based on representations made to him by the mother— specifically, her promise not to place the child for adoption if Strickland agreed not to file a paternity action. The court‘s rejec- tion of Strickland‘s reliance on the mother‘s representations was based on a provision of the Adoption Act providing that a parent of a child conceived outside of marriage ―is responsible for his or her own actions and is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties.‖ U TAH ODE § 78B-6- 106(1). Strickland also challenged the constitutionality of this pro- vision on various grounds rejected by the district court.
¶3 We affirm. Strickland forfeited his parental rights as a re- sult of a private bargain he struck with W.P., not because of any unconstitutional or otherwise unlawful state action. We accord- ingly hold that Strickland has no viable interest in the child in question and therefore affirm the denial of his motion to inter- vene.
I
¶4 In early 2010, Strickland was involved in a sexual relation- ship with W.P. At that time, W.P. was married to someone else. She and Strickland were not then married and have never been married. W.P. informed Strickland that she was pregnant in April
2010. She also told him that he was the father. The two of them remained in substantial contact throughout the pregnancy. By August, W.P. had decided, at least tentatively, to place the child for adoption. Strickland strongly protested. W.P. pro- posed a deal: If Strickland ―promised to never leave and would help with anything that [B.Y.] needed or wanted,‖ the two of them ―could raise him together and jointly share custody and costs for him.‖ Strickland agreed. Despite this agreement, Strickland contacted an attorney to
determine what he needed to do to protect his parental rights. The attorney advised him to file a paternity action—one of several re- quirements in the Adoption Act for an unmarried father to protect his right to object to an adoption. See U TAH ODE § 78B-6-121(3). But before filing, Strickland told W.P. what he intended to do. W.P. got upset and threatened to proceed with the adoption if he filed the action. Strickland caved in to her demands. He promised not to file ―as long as [she] promise[d] not to go for adoption and not tell [him].‖ And, true to his word (but unfortunately for him), Strickland never filed. Contrary to their agreement, and without telling Strick-
land, W.P. continued to make arrangements to place the child for adoption. [1] The child, B.Y., was born on December 29. The next day, W.P. relinquished her parental rights and placed the child for adoption through LDS Family Services. As required by Utah law, LDS Family Services then searched the records at Utah‘s Office of Vital Records and Statistics and determined that, as of January 4, 2011, no paternity action had been filed. LDS Family Services pro- ceeded with the adoption. The record on these points is clear: W.P. represented to
Strickland that she would not place B.Y. for adoption, and Strick- land believed her. Between the date of B.Y.‘s birth and LDS Fami- ly Services‘ record search, Strickland asked W.P. multiple times about the pregnancy, expressing excitement at the prospect of raising his child. On each occasion, W.P. either dodged his ques- tions or misled him. [2] When W.P. finally broke the news to Strickland, he
promptly commenced a paternity action. Later, Strickland also moved to intervene in the pending adoption proceeding. In sup- As the record indicates, placing B.Y. for adoption was not a last-minute decision. W.P.‘s ex-husband, K.R., signed a form re- linquishing his parental rights and consenting to adoption on De- cember 21, 2010, more than a week before the birth, and more than two weeks before W.P.‘s predicted due date. For example, when Strickland asked, through a text message, if
―we [are] havin‘ a baby yet,‖ W.P. did not respond. And when Strickland asked W.P. how her doctor appointment went, W.P. said ―good no change‖ even though she had already had the ba- by.
port of his motion, Strickland raised various federal and state con- stitutional challenges to the Adoption Act. Strickland also filed a motion for limited discovery and a motion to disqualify opposing counsel, based on allegations that the adoptive parents‘ attorney withheld material information about the adoption from the court.
¶11 The district court rejected Strickland‘s constitutional chal- lenges and ruled that Strickland had ―no interest in the adoption proceeding‖ because he failed to strictly comply with the statuto- ry requirements for contesting B.Y.‘s adoption. In support of this conclusion, the court stated that ―fraudulent representation is not . . . an excuse for failure to strictly comply,‖ citing Utah Code sec- tion 78B-6-106. The district court also rejected Strickland‘s motion for discovery and to disqualify counsel on the ground that he did ―not have standing to intervene.‖ Following the district court‘s ruling on his motion to inter-
vene, Strickland filed this appeal. Our review of the district
court‘s ruling on the legal questions presented on Strickland‘s mo-
tion to intervene is de novo.
See Manzanares v. Byington (In re
Adoption of Baby B.)
,
II To preserve his right to object to an adoption of his biologi-
cal child, Strickland was required to file, among other things, a paternity petition. U TAH ODE § 78B-6-121(3)(c). He admittedly failed to do so. To excuse his failure, Strickland points to the as- surances given by W.P. that she would not place B.Y. for adoption if he would agree not to assert his parental rights by filing a pa- ternity action. And because W.P.‘s representations to Strickland were later shown to be false when given, Strickland asserts his re- liance on those representations as a basis for excusing his failure to comply with the terms of the Adoption Act. The threshold problem with Strickland‘s position is that it
is incompatible with the express terms of the Adoption Act. The governing provision provides as follows:
(1) Each parent of a child conceived or born outside of marriage is responsible for his or her own actions and is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties.
(2) Any person injured by fraudulent representa- tions or actions in connection with an adoption is en- titled to pursue civil or criminal penalties in accord- ance with existing law. A fraudulent representation is not a defense to strict compliance with the re- quirements of this chapter . . . .
U TAH C ODE § 78B-6-106(1)–(2). Strickland‘s response to this provision is a challenge to its
constitutionality. He claims that the Adoption Act‘s requirement of strict compliance even in the face of W.P.‘s false representations infringes his rights on various constitutional fronts—procedural and substantive due process, equal protection, the Fifth Amend- ment right against self-incrimination, and the Open Courts Clause of the Utah Constitution. In addition, Strickland also challenges section 106 under the Supremacy Clause, asserting that it is preempted by the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. Finally, Strickland challenges the district court‘s denial of his motions for discovery and to disqualify opposing counsel. We reject each claim on grounds set forth below.
A. Procedural Due Process Strickland‘s first claim sounds in procedural due process.
At its core, the due process guarantee is twofold—reasonable no-
tice and an opportunity to be heard.
United States v. James Daniel
Good Real Prop.
,
1. Notice A fundamental guarantee of due process is the right to no-
tice. Before a right of property or other important interest is fore- closed as a result of state action, reasonable notice must be afford- ed. Matthews v. Eldridge , 424 U.S. 319, 348 (1976). And Strickland claims that he was deprived of such notice in this case. Yet, to the extent Strickland‘s notice argument centers on
W.P.‘s misrepresentations, it fails at the ―state action‖ threshold.
Strickland is not complaining about the
government’s
failure to
provide notice of his obligation to file a paternity action. Nor
could he.
See Sanchez v. L.D.S. Soc. Servs.
,
with the government but with W.P. He claims that W.P.‘s misrep-
resentations effectively ―stripped‖ him of the notice he was given
of his obligations under Utah law. But the due process guarantee
is notice from the government, not from private parties. And the
state afforded Strickland with all the notice he was due.
[4]
To the
See Heien v. North Carolina
,
1986) (per curiam) (asserting, in the context of rejecting a father‘s due process claim that the mother‘s fraud caused him to lose his parental rights, that ―the critical fact remains that the opportunity extent he was talked out of relying on that notice by W.P., his re- course is through a civil claim sounding in fraud or misrepresen- tation. See U TAH C ODE § 78B-6-106(2) (recognizing that a ―person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties in accordance with existing law,‖ while providing that a ―fraudulent representation is not a defense to strict compliance with the re- quirements of this chapter‖). We said nothing to the contrary in Manzanares v. Byington
(In re Adoption of Baby B.)
, 2012 UT 35, 308 P.3d 382. Strickland
reads that decision as establishing a father‘s right to actual
knowledge of the applicability of Utah law
unimpeded by private
conduct
. But the
Baby B.
opinion says nothing of the sort. For one
thing
Baby B.
isn‘t about the requirements of due process. The por-
tion of the opinion cited by Strickland concerns the interpretation
of Utah Code section 78B-6-121(3)—a provision authorizing an
adoption without a putative father‘s consent if he knew or could
have known of a ―qualifying circumstance‖ and failed to follow
the dictates of Utah law.
See In re Baby B.
,
knowledge of qualifying
circumstances under
section
122(1)(c)(i)(A). Strickland had ample knowledge of such circum-
stances—that W.P. resided in Utah, U TAH ODE § 78B-6-
122(1)(a)(i), and that she planned to give birth here,
id
. § 78B-6-
to assert his interest slipped away without any involvement of the
state‖);
Friehe v. Schaad
,
122(1)(a)(ii). And, as noted above, he had both constructive and actual notice of the consequence of his failure to file a paternity action as dictated by Utah law. Due process required no more no- tice than that. Certainly it didn‘t entitle Strickland to rely on W.P.‘s representation as to her intentions not to hold him to the dictates of our law. W.P. had no legal authority to excuse Strick- land from the terms of our adoption laws, which are aimed not just at protecting the birth mother (W.P.) but also other parties un- represented by her—most importantly the child, and also its adoptive parents.
2. Opportunity to be heard
¶23 Mere notice is an empty gesture if it is not accompanied by a meaningful chance to make your case. So the Due Process Clause also guarantees such a chance—―an opportunity to be heard at a meaningful time and in a meaningful manner.‖ Gray v. Netherland , 518 U.S. 152, 182 (1996) (internal quotation marks omitted). Strickland claims that he has been deprived of that oppor-
tunity. He alleges that his opportunity to appear and assert his parental rights in the adoption of B.Y. was foreclosed in a manner infringing his right to due process. In analyzing this claim, we begin again with the state ac-
tion question. On this claim, as noted above, there is at least an allegation of state action. Although Strickland concedes that it was W.P.‘s representations that led to his failure to file a paternity claim, he also points to a state statute, Utah Code section 78B-6- 106, as the subject of his claim. That statute provides that ―strict compliance‖ with the Adoption Act is ―not excused . . . based up- on any action, statement, or omission of the other parent or third parties.‖ And Strickland seeks to cast his due process claim in terms that challenge that provision—asserting that the statute ef- fectively endorsed the effectiveness of W.P.‘s representations, and that the statute thus deprived him of a meaningful opportunity to assert his parental rights. We find no merit in that claim and af- firm its dismissal under the standards and precedents described below. The due process right to an opportunity to be heard is by no
means a blanket prohibition of procedural prerequisites to the
preservation of a legal right.
See Bolden v. Does (In re Adoption of
J.S.)
,
showing of impossibility . In Ellis v. Social Services Department of the Church of Jesus Christ of Latter-day Saints , 615 P.2d 1250 (Utah 1980), for example, we upheld a procedural due process challenge to the requirements of our Adoption Act by a putative father whose compliance with the law was shown to have been rendered ―impossible‖ ―through no fault of his own.‖ Id . at 1256. The facts of Ellis help to elucidate this standard. In that case the child in question was conceived in a relationship between two California residents who were engaged to be married prior to the child‘s birth. Id . at 1252. About two weeks before the wedding, however, the mother broke off the engagement. Id . Then, a few days before the child‘s birth, she traveled from California to Utah without the father‘s knowledge. Id. And ultimately, upon arriving in Utah, she placed the child for adoption—after representing to those in- volved that the father was unknown. .
See also Logan v. Zimmerman Brush, Co. , 455 U.S. 422, 433–34 (1982) (―[T]he state may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.‖). In finding a due process problem in Ellis , we noted that the
putative father ―was not given an opportunity to present evidence to show as a factual matter that he could not reasonably have ex- pected his baby to be born in Utah.‖ Id . at 1256. And because due process requires a ―reasonable opportunity to comply‖ with the statutory prerequisites to the establishment of a parental right, we found a due process problem in that circumstance. Id. In so con- cluding, we first noted the ―usual case,‖ in which ―the putative father would either know or reasonably should know approxi- mately when and where his child was born.‖ Id . Yet we also dis- tinguished the facts in Ellis from this usual case—in that in Ellis it was ―impossible for the father to file the required notice of pater- nity prior to the statutory bar, through no fault of his own.‖ Id . And we held that due process was not afforded in these circum- stances, given that the father in question had not been given ―a reasonable opportunity to comply with the statute.‖ Id . We reinforced the Ellis ―impossibility‖ standard in our sub- sequent opinion in Wells v. Children’s Aid Society of Utah , 681 P.2d 199 (Utah 1984). Wells was the more ―usual case.‖ In Wells ―the birth occurred in the same state as the father‘s residence, and nei- ther the child‘s mother nor the [adoption] agency was involved in any effort to prevent him from learning of the birth.‖ Id . at 207. ―All the father needed to do to assert his rights was file his claim of paternity . . . any time prior to . . . the date the mother relin- quished the child‖ for adoption. Id . And because the father had ―ample advance notice of the expected time of birth‖ and ―advice of counsel‖ that he needed to file a paternity claim to preserve his rights, we concluded that he had ―sufficient opportunity‖ to be heard as a matter of due process. . In so holding, we emphasized the narrowness of our earlier
decision in
Ellis
. We noted, in particular, that the requirement of a
―reasonable opportunity‖ to be heard did not require a fact-
intensive, case-by-case evaluation of the reasonableness of impos-
ing a strict compliance requirement on each putative father.
Id.
at
208. In response to the father‘s argument that
Ellis
had held that
―due process requires that the father be allowed to show ‗he was
not afforded a reasonable opportunity to comply with the stat-
ute,‘‖ our opinion in
Wells
gave a limiting construction to
Ellis
:
―Such an interpretation overlooks the fact that the ‗reasonable op-
portunity‘ referred to in the quoted sentence only applies ‗in such
a case,‘ i.e., when it is first shown that it was ‗impossible‘ for the
father to file ‗through no fault of his own.‘‖
Id
. ―Otherwise,‖ we
emphasized, the requirement of a fact-intensive showing that the
putative father ―had a ‗reasonable opportunity‘ to file the required
notice of paternity would frustrate the statute‘s purpose to facili-
tate secure adoptions by early clarification of status.‖
Id
.
In reinforcing that conclusion, we also relied on the United
States Supreme Court‘s opinion in
Lehr v. Robertson
, 463 U.S. 248
(1983). Quoting
Lehr
, we asserted in
Wells
that ―‗legitimate state
interests in facilitating the adoption of young children and having
the adoption proceeding completed expeditiously . . . also
justify a
trial judge’s determination to require all interested parties to adhere pre-
cisely to the procedural requirements of the statute
.‘‖
Wells
, 681 P.2d at
208 (quoting
Lehr
,
for anticipating the need to fulfill the requirements of Utah law to
protect his legal rights. A father who lacks a sufficient basis can
establish that he has not been given a meaningful opportunity to
be heard. Under our cases, a father‘s due process right to be heard
is infringed where his rights are foreclosed for failure to comply
with the Adoption Act but he ―could not reasonably have ex-
pected his baby to be born in Utah,‖
Ellis
,
has reason to suspect that his child will be born in or placed for
adoption in Utah must fulfill the requirements of the Utah Adop-
tion Act. And such father has a ―sufficient opportunity‖ to be
heard and thus cannot establish
impossibility
.
Wells
, 681 P.2d at
207. That conclusion holds, moreover, even if he is talked out of
availing himself of that opportunity by promises or representa-
tions of a private party (such as the mother).
[6]
See id.
at 208 (noting
that a contrary conclusion would ―frustrate the statute‘s purpose
to facilitate secure adoptions by early clarification of status‖);
Bol-
den
,
the course of upholding New York‘s adoption scheme, that ―[t]he
Constitution does not require . . . a litigant to give special notice to
nonparties who are presumptively capable of asserting and pro-
tecting their own rights‖);
Steve B.D.
, 730 P.2d at 946 (rejecting a
due process challenge to the procedural requirements of Idaho‘s
adoption act in light of the ―essential fact‖ is that the father
―failed to initiate . . . any legal actions to establish his interest‖);
In
re Adoption of A.A.T.
,
tain a private suit for damages. But it does not sustain a due pro- cess claim entitling him to intervene in an adoption. Strickland‘s claim is traceable not to state action but to W.P.‘s private conduct. And his claim fails on its merits for that reason. Strickland objects that this analysis is in tension with this
court‘s decision in
In re Adoption of Baby Boy Doe
, 717 P.2d 686
(Utah 1986). And to some degree it is. In
Baby Boy Doe
, the puta-
tive father had knowledge of the mother‘s pregnancy and also
knew that the mother was residing in Utah. . at 687. And alt-
hough the father was not a Utah resident, it seems apparent that it
was not ―impossible‖ for him to comply with Utah law to protect
his rights. Yet the
Baby Boy Doe
court (a divided 3-2 majority) up-
(N.Y. 1992) (holding that the mother‘s conduct did not prevent
father from protecting his rights);
Napier v. Adoption Parents of
Cameron
,
―must have realized that there was a reasonable likelihood‖ that the child would be born in Utah ―long prior‖ to the birth, and thus that ―[i]t cannot be said . . . that it was ‗impossible‘ for [him] to protect his paternal rights‖); id . at 690 (majority opinion) (re- sponding only that the father was ―unaware of the birth until three days after the child had been born‖ due to the fact that the baby had been born ―one or more weeks early‖ and the father ―was traveling between California and Arizona‖ and thus would have had a difficult time contacting the mother).
held the putative father‘s due process challenge to the strict com- pliance requirements of our Adoption Act. In so doing, moreover, it emphasized some points that we now deem irrelevant (because they are causally connected not to state action but to private rep- resentations). Specifically, the Baby Boy Doe court asserted that the moth-
er‘s representations as to her intentions to ―move to Arizona‖ with the father ―alleviated any concern [he] might otherwise have had as to his need to protect his parental rights because he had no reason to believe an adoption would be attempted.‖ Id . at 690. And the majority also emphasized the putative father‘s ―reliance on the mother‘s representations‖—that he ―traveled to Arizona, obtained employment [there], found a place to live, and moved the couple‘s belongings‖ to Arizona. Id . The court‘s holding, moreover, appears to stem in part from the circumstances sur- rounding the mother‘s misrepresentations and the putative fa- ther‘s reliance thereon. In concluding that the putative father had ―successfully shown that the termination of his parental rights was contrary to basic notions of due process, and that he came forward within a reasonable time after the baby‘s birth,‖ the Baby Boy Doe majority relied at least in part on the ―representations made by the mother.‖ at 691. These considerations are insufficient to sustain a due pro-
cess challenge to the strict compliance provision of the Utah Adoption Act. For reasons explained above, a putative father who knows of a pregnancy and has reason to suspect that his child will be born in or placed for adoption in Utah is on notice of the ap- plicability of Utah Code section 78B-6-106. Supra ¶ 34. And be- cause that provision clearly states that a private representation is insufficient to excuse compliance with the Adoption Act, a father who knows of a pregnancy and of a likely birth in Utah but ig- nores the Utah statute in reliance on a mother‘s representations has been given all the process that he is due. Such a father pro- ceeds at his peril if he relies on such representations. And if those representations are not fulfilled, his recourse is in a civil suit against the mother, not in an intervention motion asking the dis- trict court to excuse his noncompliance with our adoption law. We repudiate the elements of the Baby Boy Doe decision that are in conflict with our opinion in this case. And we hold that Strickland‘s procedural due process claim fails on its merits and is not sustained by our opinion in that case.
B. Substantive Due Process Strickland also challenges the application of the strict com-
pliance provision of the Adoption Act under the
substantive
com-
ponent of the Due Process Clause. Such a claim is distinct from
the procedural due process challenge analyzed above. ―A proce-
dural due process attack‖ on the statutory requirements of the
Adoption Act ―take[s] the form of an assertion that such a limita-
tion forecloses any meaningful opportunity for the plaintiff to
protect its rights.‖
Bolden
,
failed to file a paternity action as required by the Utah Adoption
Act. But, citing
Lehr v. Robertson
and related federal precedent,
Strickland asserts that he did enough to ―grasp‖ his ―opportunity
. . . to develop a relationship with his offspring,‖
Our opinion in Wells also included some stray references to considerations paralleling those in Baby Boy Doe . See Wells , 681 P.2d at 207 (noting, in the course of rejecting the father‘s due pro- cess argument, that ―neither the child‘s mother nor the agency was involved in any effort to prevent [the father] from learning of the birth or from asserting his parental rights‖). Our analysis here also renders these considerations irrelevant as a matter of due process. And in fact, the Wells opinion itself suggests that these considerations are irrelevant, stating that ―[t]hese [factors] ex- ceed[ed] what is necessary‖ under Ellis and deeming the Ellis ex- ception ―inapplicable‖ based on differences in the parents‘ resi- dencies in the two cases. Id.
¶43 This claim fails as a matter of law. An unwed father‘s rights
are merely provisional.
See Wells
, 681 P.2d at 208 (quoting
Lehr
,
due process challenge to a New York provision requiring notice of
an adoption proceeding to an unwed father ―only if he had filed a
notice of intent to claim paternity with the putative father regis-
try.‖
Id
. at 205 (citing
Lehr
,
tablish that the paternity filing requirement is ―arbitrary.‖ Nor could he. For reasons established in Lehr and Wells , the require- ment of a paternity filing is far from arbitrary. We therefore af- firm.
C. Equal Protection Strickland next challenges the strict compliance provision
under the Equal Protection Clause of the U.S. Constitution. U.S. ONST . amend. XIV, § 1 (―. . . nor shall any State deprive any per- son . . . the equal protection the laws.‖). His equal protection chal- lenge is twofold. First, Strickland contends that the statute ― does not sufficiently differentiate between the Involved Father and the deadbeat dad.‖ Second, he claims that legislative findings in the Adoption Act impermissibly discriminate on the basis of gender. Both claims fail as a matter of law. The first claim is based on a faulty premise. Equal protec-
tion is a prohibition of suspect
classification
by government.
See
Bolden
,
on the actual classification employed by the government. Id . ¶ 39. ―[C]oncerns of over-inclusiveness . . . are relevant only insofar as they bear on the question whether the classification that was made clears the applicable standard of scrutiny.‖ Id . They do not present a ―viable, standalone basis‖ for an equal protection claim. Id . Thus, ―litigants whose gripe is that the legislature has imper- missibly grouped them into a category with other dissimilar indi- viduals must demonstrate that the classification that put them there fails constitutional muster.‖ .
See supra ¶ 45 (quoting the Lehr court‘s analysis concerning why New York‘s adoption scheme was not arbitrary); Wells , 681 P.2d at 206–07 (describing the state‘s interests in ―speedily identi- fying those persons who will assume a parental role over new- born . . . children,‖ in protecting ―the privacy interests of unwed mothers,‖ and in furthering ―the other interests . . . cited in Lehr ‖).
¶50 Strickland‘s initial equal protection claim fails on that ground. He is not complaining about the rationality of the classifi- cation that was made by the legislature. He is asserting only that further classification would have been better. That is not a viable equal protection claim. Strickland‘s second claim founders on similar grounds. The
statutory ―findings‖ he questions make no classification at all. They simply present the legislature‘s take on factual questions of relevance to Utah Code section 78B-6-106—that there is ―no prac- tical way to remove all risk of fraud‖ and that ―the unmarried bio- logical father is in the best position to prevent or ameliorate the effects of fraud and that, therefore, the burden of fraud shall be borne by him.‖ U TAH ODE § 78B-6-102(6)(d). Because the findings provision makes no government classification, it cannot properly be the subject of any equal protection scrutiny. And the operative provision, Utah Code section 78B-6-106, is neutral on its face. This provision, as noted above, sweeps in broad, gender- neutral terms. It provides generally that ― [e]ach parent ‖—mother or father—―of a child conceived or born outside of marriage is re- sponsible for his or her own actions and is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties.‖ Id. § 78B-6-106(1) (emphasis added). And it states that ― [a]ny per- son injured by fraudulent representations . . . is entitled to pursue civil or criminal penalties in accordance with existing law.‖ . § 78B-6-106(2) (emphasis added). There is no sex-based classifica- tion in these provisions, and thus no basis for the equal protection claim advanced by Strickland. At most, Strickland may be asserting that section 78B-6-106
has a disparate impact on men. But if so, his claim falters under Washington v. Davis , 426 U.S. 229, 243–44 (1976), which requires that ―purposeful discrimination‖ be established to sustain a dis- parate impact claim under the Equal Protection Clause. See also Pers. Adm’r of Massachusetts v. Feeney , 442 U.S. 256, 273–74 (1979) (articulating the ―settled rule that the Fourteenth Amendment guarantees equal laws, not equal results‖). Strickland has not es- tablished the purposeful animus required under Washington v. Davis and Feeney . Nor is there anything on the record that would tend to undermine the legislature‘s conclusion that fathers are in the best place to prevent the effects of fraud. And if we cannot even refute this factual assertion, we certainly cannot view it as evidence of the kind of purposeful animus necessary to sustain Strickland‘s disparate impact claim.
D. Fifth Amendment Right Against Self-Incrimination
¶54 In his most wide-sweeping constitutional challenge, Strick-
land claims that the requirements of the Adoption Act infringe his
Fifth Amendment right against self-incrimination. The claimed
incrimination is for the crime of fornication—a law still on the
books in our criminal code.
See
U TAH C ODE § 76-7-104. And Strick-
land asserts that the filing requirements of the Adoption Act
would have put him on record as admitting to that crime.
This claim fails in its basic premise. The ―mere possibility
of incrimination is insufficient‖ to implicate the Fifth Amendment.
California v. Byers
, 402 U.S. 424, 428 (1971). Under well-settled
precedent, the Fifth Amendment protects against ―real dangers,
not remote and speculative possibilities.‖
Zicarelli v. New Jersey
State Comm’n of Investigation
,
E. Open Courts Clause Strickland‘s next claim arises under the Open Courts
Clause of the Utah Constitution. U TAH ONST . art. I, § 11. This
provision guarantees that ―[a]ll courts shall be open,‖ and assures
that ―every person, for an injury done to him in his person, prop-
erty, or reputation, shall have remedy by due course of law.‖ .
The terms of this provision have spawned extensive debate
in our opinions. A central point of discussion has concerned the
question whether the Open Courts Clause conveys ―substantive‖
protection against the abrogation of common law causes of action
or merely a ―procedural‖ guarantee of access to courts for the
vindication of any claims or defenses protected by law generally
(including under statutes overriding common-law principles). The court‘s majority has embraced a substantive conception of the
Compare Laney v. Fairview City
,
open courts protection since at least
Berry ex rel. Berry v. Beech Air-
craft Corp.
,
this would not be an appropriate case in which to do so given the
shortcomings of Strickland‘s briefing. Although Strickland pur-
ports to invoke the
substantive
dimension of the Open Courts
Clause, he is not ultimately asserting a substantive claim—that the
Adoption Act has ―abrogate[d] a cause of action‖ existing at
common law without providing a ―reasonable alternative reme-
dy‖ that is ―substantially equal in value or other benefit.‖
Laney v.
Fairview City
,
tive open courts standard set forth in Berry and Laney . And Strick- land has not briefed a procedural open courts claim. We reject Strickland‘s argument for these reasons.
F. The Parental Kidnapping Prevention Act Strickland‘s final claim arises under the Parental Kidnap-
ping Prevention Act (PKPA), 28 U.S.C. § 1738A. He cites this stat-
ute as somehow superseding the terms of the Utah Adoption Act
under the Supremacy Clause. But the PKPA is a full faith and
credit statute; it requires that a court of one state ―shall not exer-
cise jurisdiction in any proceeding for a custody or visitation de-
termination commenced during the pendency of a proceeding in a
court of another State where such court of that other State is exer-
cising jurisdiction consistently with the provisions‖ of the PKPA.
See Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co.
, 1999 UT
18,
state, and thus no application for the PKPA.
G. Motions for Discovery and to Disqualify Strickland‘s last ground for appeal is his challenge to the
district court‘s denial of his motions for discovery and to disquali- fy opposing counsel. The discovery motion was aimed at identify- ing additional factual support for Strickland‘s constitutional claims. The disqualification motion asserted that opposing coun- sel had failed to disclose to the adoption court various details con- cerning the dismissal of Strickland‘s untimely paternity filing. We affirm the district court‘s decision denying these motions. The district court denied the discovery motion on the ground that Strickland had no right to intervention and thus no right to discovery. We agree with Strickland that that determina- tion was circular. But we nonetheless affirm because we conclude that the material that Strickland was seeking would have made no difference to the resolution of his constitutional claims. The disqualification motion was also rightly denied. As
with the discovery material, the material that Strickland accuses opposing counsel of withholding would have made no difference to the resolution of this case. We affirm the denial of this motion on that basis.
———————