Doe v. Sundquist

IN THE SUPREME COURT OF TENNESSEE FILED
AT NASHVILLE September 27, 1999

Cecil Crowson, Jr.
Appellate Court Clerk

FOR PUBLICATION

Filed: September 27, 1999

PROMISE DOE, ET AL., )
)
Appellees, ) DAVIDSON CIRCUIT
)
Vs. )
)
) HON. WALTER KURTZ,
) JUDGE
DONALD SUNDQUIST, ET AL., )
)
Appellants. ) No. 01S01-9901-CV-00006

For Appellants: For Appellees:

Paul G. Summers Larry L. Crain
Attorney General and Reporter AMERICAN CENTER
FOR LAW AND JUSTICE
Michael E. Moore Brentwood, Tennessee
Solicitor General
Kevin H. Theriot
Dianne Stamey Dycus AMERICAN CENTER
Deputy Attorney General FOR LAW AND JUSTICE
Nashville, Tennessee Panama City Beach, Florida

For Amici Curiae,
Teresa Evetts Horton, et al.:

Frederick F. Greenman, Jr. Harlan Dodson, III
DEUTSCH, KLAGSBRUN & BLASBAND Anne C. Martin
New York, New York Julie K. Sandine
DODSON, PARKER & BEHM
Robert D. Tuke Nashville, Tennessee
TUKE, YOPP & SWEENEY
Nashville, Tennessee

OPINION

COURT OF APPEALS REVERSED;
TRIAL COURT’S JUDGMENT REINSTATED. ANDERSON, C.J.
 We granted this appeal to decide whether legislation1 allowing disclosure of

sealed adoption records to adopted persons over the age of 21 impairs the vested

rights of birth parents who surrendered children under the prior law and thus

constitutes retrospective legislation in violation of article I, section 20 of the Tennessee

Constitution. We also have considered whether the legislation violates the right to

privacy under the Tennessee Constitution.

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 Tennessee Constitution. The Court of Appeals reversed the trial

court’s judgment, concluding that the retrospective application of the legislation

impaired the vested rights of birth parents who surrendered children under former law

with an expectation that records of the adoption would not be released.

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 Tennessee

Constitution, nor does it violate the right to privacy embraced in the Tennessee

Constitution. We therefore reverse the Court of Appeals’ judgment and reinstate the

judgment of the trial court.

BACKGROUND

In 1995, the Tennessee Legislature enacted several new statutory provisions

and amendments regarding the law of adoption. See 1995 Tenn. Pub. Acts, ch. 523

(codified at Tenn. Code Ann. §§ 36-1-101, et seq. (1996 & Supp. 1998)). Section 36-

1-127(c) of the new law, which became effective July 1, 1996, provides in relevant part:

(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 . . .;

1
1995 T enn. Pu b. Acts, c h. 523 (c odified at T enn. Co de Ann . §§ 36-1 -101, et seq. (1996
& Supp. 1998)).

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 (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. Tenn. Code Ann. § 36-1-128 (1996 & Supp. 1998).

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

Tennessee Constitution. The plaintiffs also argued that the legislation interfered with

their right to privacy, specifically, familial and procreational privacy and the non-

disclosure of personal information.

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

2
The p laintiffs also s ought re lief in federa l court but w ere uns ucces sful. Doe v. Sundquist,
943 F. S upp. 886 (M.D. T enn. 199 6), aff’d , 106 F.3 d 702 (6 th Cir. 199 7), cert. denied, ___ U.S. ___, 118
S. Ct. 51, 139 L. Ed. 2d 16 (1997).

3
Plain tiffs a lso inc luded Kim berly C . and Rus s C., a dop tive pa rents , and Sm all W orld
Ministries, Inc., a non-profit child-placing agency. These plaintiffs have not challenged the Court of
Appeals’ ruling, which was specifically limited to the plaintiffs who were birth parents.

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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 Tennessee Constitution, and (b) that the

plaintiffs failed to establish that disclosure violated the right to privacy under the

Tennessee Constitution. For these same reasons, the trial court later granted the

State’s motion to dismiss the action.

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. Tenn. R. Civ. P. 12.02(6). A

Rule 12.02(6) motion tests the legal sufficiency of the plaintiff’s complaint and not the

strength of the plaintiff’s evidence. Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997).

4
The Court of Appeals initially granted extraordinary review of the temporary injunction
issue and entered an order staying enforcement of the statute. When the trial court thereafter dismissed
the suit, the Court of Appeals consolidated the appeals.

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In ruling on such a motion, courts must construe the complaint in favor of the plaintiff,

accept the allegations of fact as true, and deny the motion unless it appears that the

plaintiff can establish no facts supporting the claim that would warrant relief. Id. When

the trial court’s grant of a Rule 12.02(6) motion to dismiss is appealed, we must take

the factual allegations contained in the complaint as true and review the lower courts’

legal conclusions de novo without a presumption of correctness. Stein v. Davidson

Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

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. 1852 Tenn. Pub. Acts, ch. 338. In 1917, the legislature

determined that in cases involving children whose parentage was unknown, and who

had not been assigned by court order to a child-caring organization, a trial judge had

the discretion to “require that all papers relating to the personal history of such child or

family history if any is of record, be sealed and filed in the county archives, to be

unsealed only by judicial order.” 1917 Tenn. Pub. Acts, ch. 120.

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. 1949 Tenn. Pub. Acts, ch. 127.

Similarly, the statute was amended in 1951 to require an adopted individual seeking

information to file a court order; disclosure required the court to find that releasing the

records was in the best interest of the adopted person and the public. 1951 Tenn. Pub.

Acts, ch. 202.

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 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. 1982 Tenn. Pub. Acts,

ch. 668. In 1985, an amendment provided for further disclosure of records if DHS

received consent from the biological parents. 1985 Tenn. Pub. Acts, ch. 285. In 1989,

an amendment provided that upon a written request of an adopted person over age 21,

DHS was to search its records for information concerning the location of the birth

parent(s) and, if found, request consent for disclosure of the information. If the birth

parent consented, DHS was to provide the adopted person with the name, address,

and identifying information of the birth parent. 1989 Tenn. Pub. Acts, ch. 507.

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. Tenn. Code Ann. § 36-1-127(c)(1). Other portions

of the legislation, however, establish a procedure by which a birth parent or related

individual can “veto” any contact with the adopted party who has received the records.

Tenn. Code Ann. § 36-1-128 (1996 & Supp. 1998). We will now address the

constitutionality of these disclosure provisions.

Retrospective Legislation

Article I, section 20 of the Tennessee Constitution provides that “no

retrospective law, or law impairing the obligations of contracts, shall be made.” We

have construed this provision as prohibiting laws “which take away or impair vested

rights acquired under existing laws or create a new obligation, impose a new duty, or

attach a new disability in respect of transactions or considerations already passed.”

Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978). A “vested right,” although difficult

to define with precision, is one “which it is proper for the state to recognize and protect

and of which [an] individual could not be deprived arbitrarily without injustice.” Id. at

905 (citation omitted).

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 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 a vested

right or contractual obligation in violation of article I, section 20. Kee v. Shelter Ins.,

852 S.W.2d 226, 228 (Tenn. 1993).

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

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 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 . . . .

Tenn. Code Ann. § 36-1-101(a) (1996 & Supp. 1998). Moreover, with regard to the

disclosure of records, the statute expressly provides:

[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.

Tenn. Code Ann. § 36-1-101(c) (emphasis added). The legislation in question is

obviously related to achieving these legitimate goals, which the General Assembly has

found to be in the public interest.

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

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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.

Early adoption statutes did not require either that records be sealed or that the

identity of the parties remain confidential. Later amendments to the statutes provided

that even if sealed, records could be disclosed upon a request by an adopted person

and a judicial finding that disclosure was in the best interest of the adopted person and

the public. Still other amendments enacted in 1982 and 1985 permitted disclosure of

information under certain circumstances even without a judicial finding. There simply

has never been an absolute guarantee or even a reasonable expectation by the birth

parent or any other party that adoption records were permanently sealed. In fact,

reviewing the history of adoption statutes in this state reveals just the opposite.

Accordingly, we disagree with the Court of Appeals’ conclusion that the plaintiffs had a

vested right in the confidentiality of records concerning their cases with no possibility of

disclosure.5 Cf. Moulton, 511 S.W.2d at 695-97 (finding that reasonable expectation

under prior law was impaired by retroactive application of statute reviving an otherwise

barred cause of action).

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. Tenn. Code Ann. § 36-1-130 (1996). It does not create new rights or

5
Similarly, given this statutory history, we also disagree with the Court of Appeals’
conclusion that the plaintiffs could reasonably rely on an alleged assurance of confidentiality from either a
state agency or state regulation.

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allow access to any records that previously were not to be released. In sum, we

believe that these new methods and standards for disclosure are procedural in nature

and reflect the legislature’s effort to create legislation that advances the best interest of

adopted persons and the public.

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

Tenn. Code Ann. § 36-1-127(c) does not impair the vested rights of the plaintiffs in

violation of article I, section 20 of the Tennessee Constitution.

Right to Privacy

The plaintiffs assert that disclosure pursuant to Tenn. Code Ann. § 36-1-127(c)

violates their right to privacy under article I, sections 1, 3, and 20, and article XI,

section 8 of the Tennessee Constitution. They allege that the statute invades the

rights of familial and procreational privacy, as well as the right to non-disclosure of

personal information.

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 under the federal

constitution, we are free to extend greater protection in applying our own state

constitution. Id. at 600.

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 As the plaintiffs argue, and the State concedes, the right to privacy under the

Tennessee Constitution includes the right of procreation. Id. The right to privacy also

encompasses “the right of parents to care for their children without unwarranted state

intervention.” Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). These rights under

our state constitution are likewise reflected in the United States Constitution. E.g.,

Bellotti v. Baird, 443 U.S. 622, 634, 99 S. Ct. 3035, 3043, 61 L. Ed. 2d 797 (1979); Roe

v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147 (1973).

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.

6
The contact veto provisions are strengthened and enforced by both criminal sanctions
and civil remedies. Tenn. Code Ann. § 36-1-132 (1996 & Supp. 1998).

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 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

CONCLUSION

We conclude that the disclosure of adoption records as provided in 1995 Tenn.

Pub. Acts, ch. 523, codified at Tenn. Code Ann. § 36-1-127(c), does not impair the

plaintiffs’ vested rights in violation of article I, section 20 of the Tennessee Constitution

and does not violate the plaintiffs’ right to privacy under the Tennessee Constitution.

Accordingly, we reverse the judgment of the Court of Appeals and reinstate the

judgment of the trial court. The stay granted by the Court of Appeals prohibiting the

7
The Sixth Circuit has likewise concluded on several occasions that there is no
constitution al right to the n on-disc losure of person al inform ation. Jarvis v. Wellman , 52 F.3d 125, 126
(6th Cir. 19 95); Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 19 94); J. P. v. De Santi, 653 F.2d 1080, 1090
(6th Cir. 19 81).

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release of adoption records under the provisions of Tenn. Code Ann. § 36-1-127(c) is

lifted.

Costs of appeal are taxed to the appellees, for which execution shall issue if

necessary.

________________________________
RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Birch, Holder, and Barker, JJ.

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