Petition — Yesterday's Children v. Kennedy

Supreme Cour, U.

FILED

APR 7 i978

L_MicHaet RODAK, JR., C

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

wo. 77-1428

YESTERDAY'S CHILDREN, A Not-For-Profit

Corporation, CYNTHIA DOE, JEANINE DOE,

BEVERLY DOE, JUDY DOE, KAREN DOE,

M. JANE DOE, VERONICA DOE, JAMES DOE,

Petitioners,

=~

MARGARET KENNEDY, Director, Illinois

Department of Children and Family Services,

HARRY COMERFORD, Presiding Judge, County

Division, Circuit Court of Cook County,

PAUL Q. PETERSON, Director, Illinois

Department of Public Health,

STANLEY KUSPER, Clerk, Cook County, and

WILLIAM SCOTT, Attorney General of Illinois,

Respondents .

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Patrick T. Murphy, Esq.

GOLDBERG & MURPHY, LTD.

33 N. LaSalle - Suite 2300

Chicago, Illinois 60602

312/782-4530

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

YESTERDAY'S CHILDREN, A Not-For-Profit

Corporation, CYNTHIA DOE, JEANINE DOE,

BEVERLY DOE, JUDY DOE, KAREN DOE,

M. JANE DOE, VERONICA DOE, JAMES DOE,

Petitioners,

- WS -

MARGARET KENNEDY, Director, Illinois

Department of Children and Family Services,

HARRY COMERFORD, Presiding Judge, County

Division, Circuit Court of Cook County,

PAUL Q. PETERSON, Director, Illinois

t of Public Health,

STANLEY KUSPER, Clerk, Cook County, and

WILLIAM SCOTT, Attorney General of Illinois,

Respondents .

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Patrick T. Murphy, Esq.

GOLDBERG & MURPHY, LTD.

33 N. LaSalle - Suite 2300

ry + Illinois 60602

312/782-4530

IN D E X

a 2

Pn + «sb sea So ee eae ee 2

Question Presented for Review. ........ 3

Constitutional and Statutory Provisions

Aik eae ee a eo oO 3-6

Statement of the Case........... 7-14

Reasons for Granting the Writ. ...... 15-26

A. THE CONSTITUTIONAL QUESTION RAISED IN

THE COMPLAINT IS SUBSTANTIAL AND MAN-

DATES FEDERAL JURISDICTION. ..... 27-28

FOR, NOR INTEREST IN, DENYING ADULT

AND COURT RECORDS. .......... 28-31

C. EQUAL PROTECTION VIOLATIONS. ..... 32-33

ns . S56 & 6 es ee 6 eS 33-34

nn + os @ «ee & oS bow ae ov

CASES :

Bellotti v. Baird, 428 U.S. 132

+ 2.) ieee 11, 13, 24

Carey v. Population Services, 431 U.S. 678

1) rrr 27

ee eee se 6 6 eee 20

Commissioner v. Estate of Bosch, 387 U.S.

- ee ee & ee ee ee 14, 20

Connecticut State Federation of Teachers v.

@) tion, .

0.7, ) ee a 14

Doran v. Salem Inn, Inc., 422 U.S. 922,

JOC Pevvves = eee 14

Erznoznik v. City of Jacksonville, 422

0.5. me GV. wee eh we eee 27

Frontiero v. Richardson, 411 U.S. 677,

ey, i 32

Graham v. Richardson, 403 U.S. 376

oo ee 6 be lee eee 33

Griswold v. Conmecticut, 381 U.S. 479

errr 27, 28

Harman v. Forssenius, 380 U.S. 528,

Soo Urey octet ee eee ola ae 18

In the Matter of Daniel Doe, 76 CO 2436

(Cis. Ce. oe Um. Gad se ee 12, 14, 22, 23

aftin

Korematsu v. U.S., 323 U.S. 244

I ee ke we ee ee 33

eee Pontikas, 414 U.S. 51

ee 18

vy. Louisiana, 319 U.S. 79

ee Sg 6 6 ee te 33

Loving v. Virginia, 388 U.S. 1 (1966) ... . 32

Ohio Bureau of t Services et al.

Vv. é .S. 471

a 11, 13, 24, 25

Red Lion Broadcast Co. v. F.C.C.,

395 U.S. 367, 350° C1969) aera Ne ae le

Robb v. Connolly, 111 U.S. 624,

ee kk gk 18

Roe v. Wade, 410 U.S. 113,

re 29, 30

Stanley v. Georgia, 394 U.S. 557

150) GS 27

STATUTES :

Ill. Rev. Stat. Ch. 4, §9.1-18 (1975) ....4

Ill. Rev. Stat. Ch. 37

Ill. Rev. Stat. Ch. 48(a) (1949). ..... 28

Ill. Rev. Stat. Ch. 111 1/2 §73-17

DI ET Ss kg 6 6 et te 8 4

United States Constitution, Amendment 1... 5

ems «eek oe Ss eee eee ee eS 3, 4

cf 8 ee re ere ee ee ee ee 4

MISCELLANEOUS :

Haeman, Speech and Privacy, Is There a et

Not To Be Spoken To? 67 N.W.L. Rev.

ee. + a os a ok see es ee ew ee 28

Note, The Adult Adoptees---Right To Know

His Natural Heritage, 48 S. Cal. L.

Rev., 1196, 1204-1210 (1975) ....... 28

-iv-

NO.

YESTERDAY'S CHILDREN, et al., - - - Petitioners,

=

MARGARET KENNEDY, et al., - - - - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Petitioners, respectfully pray that a

Writ of Certiorari be issued to review the Judg-

ment and Opinion of the United States Court of

Appeals for the Seventh Circuit entered on 29

December 1977 (a Petition for Rehearing was

denied on 16 January 1978) in cause No. 77-1870.

OPINION BELOW

The Opinion of the United States Court of

Appeals for the Seventh Circuit is not yet re-

ported. A copy of the Opinion is attached as

Appendix 1.

JURISDICTION

The Judgment of the United States Court of

Appeals for the Seventh Circuit was entered on 29

December 1977, affirming the Decision of the

Three-Judge Court in holding that abstention was

applicable to the facts and circumstances of this

case. A Petition for Rehearing was filed and

denied on 16 January 1978. Jurisdiction to review

the Opinion and Judgment of the United States

Court of Appeals is conferred upon this Court by

28 U.S.C. 1254 (1).

QUESTION PRESENTED FOR REVIEW

Whether abstention is appropriate in the

present case where the Illinois statutory scheme

quite clearly prevents adult adoptees from ob-

taining access to their birth records absent a

court hearing at which they must demonstrate some

type of good cause and where the Petitioners,

herein, adult adoptees, claim that their birth

records should be opened to them on the same basis

that such records are open to every other adult

person.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment 1:

"Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the govern-

ment for 4 redress of grievances."

United States Constitution, Amendment 14 §1:

"All persons burn or naturalized in the United

->

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immmities or citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws."

28 U.S.C. 2281 provides:

"An interlocutory or permanent injunction

restraining the enforcement, operation or execu-

tion of any State statute by restraining the action

of any officer of such State in the enforcement or

execution of such statute or of an order made by

an administrative board or commission acting

under State statutes, shall not be granted by any

district court or iudge thereof upon the ground

of unconstitutionality of such statute unless the

application therefore is heard and determined by

a district court of three judges under section

2284 of this title."

Ill. Rev. Stat. Ch. 4, §9.1-18 (1975):

"The word ‘illegitimate’ or the words ‘born

out of wedlock', or words importing such meaning,

shall not be used in any adoption proceeding in

any respect."

Ill. Rev. Stat. Ch. 111 1/2 §73-17 (1971):

The Vital Records Act

'"(1) For a person born in this State, the State Registrar of Vital Rec-

ords shall establish a new certificate of birth when he receives any of

the following :

_ (a) A certificate of adoption as provided in Section 16! or a certi-

fied copy of the order of adoption together with the information neces-

Sary to identify the original certificate of birth and to establish the

new certificate of birth; except that a new certificate of birth shall not

be established if so requested by the court ordering the adoption, the

adoptive parents, or the adopted person.

(b) A certificate of adoption or a certified copy of the order of

ton entered in a court of competent jurisdiction of any other state

°F country declaring adopted a child born in the State of Illinois, to-

Sether with the information necessary to identify the original certifi-

Sate of birth and to establish the new certificate of birth; except that a

new certificate of birth shall not be established if so requested by the

Sourt ordering the adoption, the adoptive parents, or the adopted person.

a A request that a new certificate be established and such evidence

required by regulation proving that such person has been legitima-

tized, or that the circuit court has determined the paternity of such a

person.

(d) An affidavit by a physician that he has performed an operation

on a person, and that by reason of the operation the sex designation on

such person’s birth record :hould be changed. The State Registrar of

Vital Recurds may make any investigation or require any further in-

formation he deems necessary.

Each request for a new certificate of birth shall be accompanied by a

fee of $5 and entitles the applicant to one certification or certified

copy of the new certificate. If the request is for additional copies, it

shall be accompanied by a fee of $2 for each additional certification or

certified copy.

(2) When a new certificate of birth is established, the actual place

and date of birth shall be shown; provided, in the case of adoption of a

person born in this State by parents who were residents of this State at

the time of the birth of the adopted person, the place of birth may be

shown as the place of residence of the adoptive parents at the time of

such person’s birth, if specifically requested by them, and any new cer-

tificate of birth established prior to the effective date of this amendato-

ry Act may be corrected accordingly if so requested by the adoptive

parents or the adopted person when of legal age. The new certificate

shall be substituted for the original certificate of birth :

of.

(a) Thereafter, the origina! certificate and the evidence of adoption,

paternity, legitimation, or sex change shall not be subject to inspection

or certification except upon order of the circuit court or as provided

by regulation.

(b) Upon receipt of notice of annulment of adoption, the original

certificate of birth shall be restored to its place in the files, and the

new certificate and evidence shall not be subject to inspection or certi-

fication except upon order of the circuit court.

(3) If no certificate of birth is on file for the person for whom a

new certificate is to be established under this Section, a delayed record

of birth shall be filed with the State Registrar of Vital Records as pro-

vided in Section 14 or Section 15 of this Act? before a new certificate

of birth is established, except that when the date and place of birth and

parentage have been established in the adoption proceedings, a delayed

record shall not be required.

(4) When a new certificate of birth is established by the State Reg-

istrar of Vital Records, all copies of the original certificate of birth in

the custody of any custodian of permanent local reco:ds in this State

shall be transmitted to the State Registrar of Vital Records as directed,

and shall be sealed from inspection.

STATEMENT OF THE CASE

On February 5, 1975, the Plaintiffs, seven

adults who had been adopted as infants through

the Illinois Courts and a not-for-profit Illinois

Corporation, Yesterday's Children, filed a

Complaint (Appendix 3) pursuant to 42 U.S.C. 1983

seeking declaratory and injunctive relief. They

alleged a violation of their rights secured by

the First, Fifth, Ninth, Thirteenth and Four-

teenth Amendments to the United States Constitution.

(On February 11, 1975, an Amended Complaint was

filed eliminating class aspects of the case.)

The preliminary Statement to the Complaint

(pp. 2-3) summarizes the Plaintiffs' contentions.

That statement reads as follows:

"This is a Complaint filed individually

and on behalf of all individuals who

were adopted pursuant to Illinois law,

who are now adults and who wish to ob-

tain and/or have an opportunity to view,

upon presentation of proper identifi-

cation, records identifying their natural

parents, background, extended family

of

and any other pretinent information.

Illinois law presently allows any party

to an adoption proceeding to move that

the records| be sealed and remain so

absent a order. For over 25 years

all adoption records have been cus-

tomarily seAled in Cook County and for

the past two \years there has been a

general court order to that effect.

Traditionally information has been af-

forded to adoptees only upon proof of

serious and probably hereditary medical

problems. (However, even absent this

custom and action the mere threat of

action and the necessity for the plain-

tiffs to endure long and expensive liti-

gation to determine their identity

creates a breach of plaintiffs’ con-

stitutional rights. )

There are three sets of records the

plaintiffs contend that they are auto-

mati ally entitled to view without court

action: (1) the ori 1 file, (2) the

original birth certificate, and re-

cords from the private adoption agency

if one were involved.” (emphasis added)

The plaintiffs assert that the continued

concealment by statutory fiat and state

action of their identities deprives them

of cherished constitutional protections

and rights which are afforded to other

citizens.

On October 24, 1975 in the United States

District Court the Honorable Thomas R. McMillen,

=

District Judge, dismissed the Complaint because

it ''---involves a basic question of state public

policy which has never been passed upon by State

Court---"' (p.3, October 25 Order).

On May 24, 1976 the United States Court of

Appeals for the Seventh Circuit in an unpub-

lished order (Appendix 2) remanded the cause to

a Three-Judge Court to determine whether or not

a substantial federal question had been presented

(at p.2 of that Order). At page 5, the Court of

Appeals, in dictum, analyzed those situations in

which abstention applied and concluded that

".--we believe the Trial Court erred in ab-

staining."' Court opined further:

"In light of Plaintiffs-Appellants'

allegations we believe the trial court

erred in abstaining. The two memorandum

opinions by the trial judge indicated

that he carefully reviewed the problem.

We nevertheless reverse because the case

involves fragile constitutional rights

including First Amendment questions---.

In this case we believe none of the

three abstention situations are present.

-9-

Obviously, there is no state criminal

proceeding so the third type of case

noted is inapplicable. The first men-

tioned case (where a federal question

might be mooted by a determination of

state law) also does not apply in light

of plaintiffs’ allegations that they

have previously unsuccessfully sought

access to their files in the state

courts. Nor does the present suit fall

squarely within the second category of

abstention. The state law and policy

in Illinois has been established for

years. Adoptees simply are not allowed

access to their records unless they

come within narrow exceptions. This

litigation is a direct challenge to

that policy based on alleged consti-

tutional rights. Thus we do not believe

this is a situation where principles

fo comity and federalism would dictate

abstention. The result sought in the

instant case is not transcended by the

importance of the state policy or the

difficulty of the question presented."’

After the remand, the Plaintiffs and

Defendants submitted Briefs in support of and in

opposition to their Motions for Summary Judgment

and to Dismiss. On August 8, 1977 the Three-

Judge Court denied the Motions for Summary

Judgment and granted the Motion to Dismiss on

grounds of abstention. In their decision, the

-10-

Three-Judge Court pointed out that the

Seventh Circuit's language on abstention

was dictum (p.10), relying primarily upon

the then recently decided cases of Bellotti

v. Baird, 428 U.S. 132 (1976) and Ohio

Bureau of Employment Services et al. v.

Hodory, 431 U.S. 471 (1977).

On December 29, 1977 the United States

Court of Appeals affirmed the Three-Judge

Court's decision on abstention. (Appendix

1).* The Court of Appeals also relied

primarily upon Ohio v. Hodory, Supra and

Bellotti v. Baird, Supra to justify ab-

stention.

"---it appears that abstention

to allow more expanded consider-

ation by the Illinois courts may

‘materially alter the constitu-

tional issue presented." Citing

Ohio v. Hodory, Supra at p.481

(p.7, Appendix 1, 7th Cir. Dec.)

* A Petition for Rehearing was denied on

January 16, 1978.

Re

However, the fact which caused the granted." (App. 1,p.7).

Seventh Circuit to abstain was an unre- The United States Court of Appeals for

ported opinion by the Circuit Court of the Seventh Circuit applied abstention

Cook County after the Briefs had been filed beasune:

in the Seventh Circuit. The Seventh Cir-

"Despite this construction by one

state trial court, it appears that

abstention to allow more expanded

consideration by the Illinois

courts may ‘materially alter the

cuit pointed out:

"It is thus apparent that the

Daniel Doe court would not limit

the unsealing of adoption re- constitutional issue presented"

cords to cases where adoptees (Ohio Bureau of Employment Ser-

can show ‘a probably and serious vices v. Hodory, 431 U.S. 471,

hereditary problem’ or ‘critical 481), and that the benefits of

medical reasons,’ as claimed by such abstention are nat ‘too

plaintiffs (BR. 3, 5) or where speculative to justify or re-

"genetic, medical, psychological quire avoidance of the question

or other problems manifest them- presented.’ Id. The fact that

selves as requiring such infor- a state trial judge read a type

mation or where neither party of good cause requirement into

objects to the disclosure.' the statutes and General Order

Instead in Daniel Doe the fol- does not remove their ambiguity

lowing standard has seemingly for two reasons. First, good

been read into the statutes

and General Order: the peti-

tioner must show by a prepon-

derance of the evidence that,

as an adult, he or she has a

real and immediate need for such

records, and if such a showing

is made, the biological and

adoptive parents in order to

avoid unsealing must show by a

preponderance of the evidence

that substantial harm will trans-

pire if the relief requested is

~12-

cause is subject to many diverse

interpretations. See Bellotti

v. Baird, 428 U.S. 132, 143-146,

148. While it could be argued

that Judge Schneider offered a

more specific standard than good

cause, even that arguably more

specific standard does not con-

traindicate the benefits of ab-

stention because it merely

substitutes for good cause several

other broad terms that were not

~\™

defined in the unreported nisi

prius opinion and will have to

await further interpretation.---"

"Second, even if Judge Schneider's

unappealed opinion did define

conclusively all the unclear

standards, until an Illinois re-

viewing court (which will of

course be fully competent to

adjudicate constitutional claims,

Doran v. Salem Inn, Inc., 422

U.S. 922, 930) considers ‘the

statute and the General Order,

their construction will remain

in doubt despite Judge Schneider's

persuasive opinion. As the Se-

cond Circuit held in Connecticut

State Federation of Teachers v.

Board of Education, 538 F2d 471,

485 (1976), decisions by state

trial judges, particularly unre-

ported decisions, generally

provide insufficient clarity to

make abstention inappropriate,

at least in the absence of a

similar decision by the state's

appellate courts. Cf. Comm ey

sioner v. Estate of Bosch, 387

U.S. 456 (1967)."* (App.1, pp.8,9)

REASONS FOR GRANTING THE WRIT

The decision below requires re-

view because it interjects new

and much more stringent standards

into the doctrine of abstention

- that is, where a state trial

court in an unreported, unappealed

opinion interpreted the com-

plained of Illinois statutory

scheme, the opinion below asserted

that abstention is mandated in

order to allow Illinois courts

the opportunity to further re-

view and interpret the statutory

scheme even though:

1. The state opinion (Appendix

2) not only confirms the

Plaintiffs' interpretation

of the Illinois statutory

scheme but actually placed

even more stringent standards

on those circumstances under

which adult adoptees could

have access to their records.

2. Neither the Seventh Circuit

in the opinion below nor the

Defendants ever attempted to

explain or argue how review

by the Illinois courts could

save or reserve the consti-

tutional question.

* The Doe case which did not raise the

constitutional question was not appealed 3. The constitutional question

i - was never raised, argued or

TD eluded es Appendix 2 a decided in the unreported

-14- -15-

Illinois decision.

Further this case affords this

Court the opportunity to clarify

the status of abstention insofar

as where, when and under what

circumstances abstention should

be required in order to allow

state courts the opportunity

to evaluate, interpret and, where

necessary, pass upon constitu-

tional issues of the statute it-

self.

The crux of the Plaintiffs' Complaint

is that the Illinois statutory scheme ef-

fectively denies them the opportunity to

review their original courts and birth

records and violates their constitutional

rights (as set forth in the Constitutional

Analysis Section below) for two reasons:

(1) “traditionally information has been

afforded to adoptees only upon proof of

serious and probably hereditary medical

problems,"' and (2) "---even absent this

-16-

custom and action the mere threat of

action and the necessity for the Plain-

tiffs to endure long and expensive liti-

gation to determine their identity creates

a breach of Plaintiffs' constitutional

rights."" (P.2, Complaint).

The Decision in the court below con-

centrated only upon the first of the above

two reasons - that is , the standards set

forth by the statutory scheme - while both

making light of and misinterpreting the

second part of the Plaintiffs’ claim.

(See pp. 9-10).

The holding of the court below is an

unwarranted, unsound and precarious exten-

sion of the abstention doctrine. The

decision quite clearly holds that ab-

stention is mandated when a State Trial

Court renders an interpretation of an

attacked state statute even though that

a

interpretation underscores the unconsti-

cause requirement into the statues and

tutionality of that statute and is consis-

General Order does not remove their ambi-

tent with Plaintiffs' claim. However, this .

guity for two reasons."" (P.8). The two

Court seems previously to have inter-

reasons according to the Court were:

preted abstention much more narrowly:

(1) Good cause is subject to many

"---But the doctrine of abstention

‘contemplates that deference diverse interpretations and "while it

to state court adjudication only

be made where the issue of state could be argued that Judge Schneider of-

law is uncertain." (Citing from

Harman v. Forssenius, 380 U.S. fered a more specific standard than good

528, 534 (1965)). Where, the

underlying state statute is sus- cause, even that arguably more specific

ceptible of an interpretation

that might avoid the necessity standard does not contraindicate the

for constitutional adjudication,

abstention would amount to | benefits of abstention because it merely

shirking the solemn responsi-

bility of the federal courts to : substitutes for good cause several other

‘guard, enforce and protect

every right granted or secured broad terms that were not definea in the

by the Constitution of the

United States,'" (Citing from unreported nisi prius opinion and will

Robb v. Connolly, 111 U.S. 624,

637 (1884), Kusper v. Pontikas, | have to await further interpretation."

414 U.S. 51

(at P.8).

Yet in relying upon the Circuit Court (2) The second reason why the Seventh

of Cook County for abstaining the Court Circuit believed abstention should lie

below observed that "[T]he fact that a was that even if the Circuit Court of Cook

state trial judge read a type of good County's unappealed opinion "did define

-18- -19-

conclusively all unclear standards" that

construction would remain in doubt be-

cause "decisions by State trial judges,

particularly unreported decisions, gen-

erally provide insufficient clarity

to make abstention inappropriate, at least

in the absence of a similar decision by

the State's appellate courts." Citing

Commissioner v. Estate of Bosch, 387 U.S.

467 (1967) and (at footnote 11) distin-

guishing Carey v. Sugar, 425 U.S. 73,

78 (1976).

Of course, whether the standard to be

applied is serious and probably hereditary

medical problems or the more strict one

employed by the Circuit Court of Cook

County, the question still remains whether

there is any interpretation of the statu-

tory scheme by the State's courts that

could save the constitutional question.

-20-

es mm

Although the Court below argued that the

standards needed further interpretation

and, if possible, an appellate interpre-

tation, the Seventh Circuit never attempted

to set forth how an Illinois Court could

obviate the constitutional question. Nor

did the Defendants in their many Briefs

before the one judge and Three-Judge

Court and in their two Briefs in the

United States Court of Appeals even attempt

to demonstrate just how the doctrine of

abstention would allow the Illinois courts

to interpret the statutory scheme in such

a manner as to obviate the constitutional

question. A close reading of all the

decisions and Briefs makes it clear ‘that

what both the Defendants have argued and

what the Courts have indicated (with the

exception of the May, 1976 Opinion of the

Seventh Circuit) is that there simply is

no constitutional question.

-21-

While the Doe case demonstrated that

the standards by which an adult adoptee

could obtain his records were stringent

it also clearly demonstrated the burden-

some ordeal an adult adoptee is subjected

to:

"A hearing was held wherein the

petitioner introduced testimony

that he suffered severe emotional

problems. Petitioner testified

that he had been seeing a psy-

chiatrist for about thirteen (13)

years. He had overdosed on pills

on seven occasions. On the last

occasion he was in a coma for

about 36 hours.

Expert testimony of Dr. John

Utley, M.D., a board certified

psychiatrist, showed that Doe

had suffered severe depressions

and anxiety. He testified that

when the petitioner overdosed

on drugs it was an intentional

act of self-destruction. The

Doctor testified further that

while finding the petitioner's

natural parents would not solve

all his emotional problems, it

would be beneficial.

Dr. Edward Kelleher, M.D., a

board certified psychiatrist,

-22-

testified for the State. He

stated that he had conducted two

interviews with Doe. His diag-

nosis was that the petitioner

had a schizoid type personality

and that he was suffering from

a mixed type of neurosis. When

asked whether the information

requested might aid in the

petitioner treatment, the doc-

tor replied that there was no

assurance that it would, but

conversly there was no certainty

that it would not help." In the

Matter of Daniel Doe, 76 CO 2436

(Cir. Ct. of Ck. Cty.). (App.2, p. )

Daniel Doe, who had an obvious real

and immediate need, had to endure the

humiliation of public hearings and cross-

examination concerning his schizophrenia

and suicide attempts along with the fi-

nancial burden of retaining counsel and

legal proceedings. Once he

demonstrated that he had a real and

immediate need for the records he had to

endure the further humiliation of the

Court notice to his adoptive parents in-

forming them of Doe's case and wishes to

-23-

determine if the parents had any objection.

It is obvious that the Plaintiffs, none

of whom have what could be termed as a

real and immediate need (Para. 28,

Complaint) could obtain their records.

But, again, this merely begs the question

as to why the Plaintiffs must be forced

to retain counsel and go through pro-

ceedings in order to try to prove they

have a real and immediate need.

The decision of the Court below ap-

pears to have misjudged the import of

Bellotti v. Baird, Supra and Ohio Bureau

of Employment Services v. Hodory, Supra.

In Bellotti v. Baird, Supra, the State

of Massachusetts went to great lengths

both before the Three-Judge Court and in

this Court to demonstrate that the

statute could be interpreted to save the

constitutional question. Neither the

State of Illinois nor the Court below

«Ih

ever attempted to indicate just how the

constitutionality of the Illinois statu-

tory scheme can be saved in the instant

case. Indeed, the Court below placed its

entire reliance for abstention upon the

fact that an Illinois court had inter-

preted the statute while admitting that

that court (the Illinois Trial Court) had

interpreted the statute even more strictly

than the Plaintiffs had alleged in their

Complaint (see P.8, Decision of Seventh

Circuit - Appendix 1).

In Ohio Bureau of Employment Services

v. Hodory, Supra this Court recognized

the continued vitality of the Pullman

decision (Railroad Commission v. Pullman

Co., 312 U.S. 496 (1941)) when it stated:

".--As has been noted, Pullman

abstention is an equitable doc-

trine that comes into play when

it appears that abstention may

eliminate or materially alter

the constitutional issue pre-

=25~

sented. There is a point,

however, at which the possible

benefits of abstention become

too speculative to justify or

require avoidance of the ques-

tion presented. That point

has been reached and surpassed

here. We conclude that Pullman

abstention is not appropriate.”

There are no facts present in the in-

stant case which would allow for an eli-

mination or alteration of the constitu-

tional question. Certainly any "possible

benefits of abstention (are) ---too

speculative to justify or require avoidance

of the constitutional question presented."

-26-

Il

A. THE CONSTITUTIONAL QUESTION RAISED

IN THE COMPLAINT IS SUBSTANTIAL AND

MANDATES FEDERAL JURISDICTION.

The right to seek out and obtain in-

formation irrespective of whether such

information is of a personal or societal

benefit has found protection within the

right of privacy. Carey v. Population

Services, 431 U.S. 678, (1977) and in the

First Amendment right to seek out infor-

mation. Stanley v. Georgia, 394 U.S. 557

(1969); Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975); Red Lion Broadcasting

)

Co. v. F.C.C., 395 U.S. 367 390 (1969).

In Griswold v. Connecticut, 381 U.S. 479

(1964), Mr. Justice Douglas writing the

Court's Opinion pointed out that the

right of freedom of s»eech and press

"---includes not only the right to utter

or to print, but the right to distribute,

the right to receive, the right to read

-27-

(Citations) and freedom of inquiry, free-

dom of thought and freedom to teach

scrutinized by the court. Roe v. Wade,

(Citations)---. Griswold v. Connecticut,

410 U.S. 113, 155 (1973).

381 U.S. 479, 482 (1964). See Generally,

Petitioners admit that it is com-

Haeman, Speech and Privacy, Is There A

j pelling to prevent minor adoptees from

Right Not To Be Spoken To? 6/7 N.W.L. Rev.

having access to their birth and court

153 (1972) and Note, The Adult Adoptees

records in order to allow adoptive

---Right To Know His Natural Heritage,

parents the protection against the intru-

48 S. Cal. L. Rev., 1196, 1204-1210

(1975) sion and interference by "repentant"

natural parents. *

B. THE STATE HAS NO COMPELLING PUR-

POSES, NOR INTEREST IN, DENYING

ADULT ADOPTEES EACH ACCESS TO

THEIR BIRTH AND COURT RECORDS.

For the state to deny adoptees a clear

expression of their First Amendment rights

* This would also seem to be the reason

requires a statutory purpose reflecting why the Illinois State Legislature in 1945,

for the first time, mandated for the

the promotion of a compelling governmental \ sealing of birth records. Prior to that

| time there were no such provisions in

interest which in turn must be carefully Illinois laws and between 1945 and 1961

birth records were sealed to all but the

adult adoptee. I11. Rev. Stat. Ch. 48

(a), (1949 and previous years). It was

not until 1961 that the Legislature man-

dated that adult adoptees could not view

their birth records.

x * -29-

ili

Of course, no matter how compelling

these reasons may be when an adoptee is

. . H .

a minor they become non-existent once the owever, an analysis of these reasons

adoptee reaches majority. Roe v. Wade, | which is inappropriate for purposes of

| this Petition demonstrates no compelling

Supra at P.162.

Other conceivable purposes for the justification.

anctioning of adoption records are:

1. Potential adoptive parents will

not adopt if their adoptive children can

discover something about their natural

heritage 18 years later;

2. Natural parents may not be as

willing to give up their children for

adoption if they realize that later in

life the child could discover them; and

3. Natural parents have certain pri-

vacy rights to prevent their frildren

from viewing their court and birth records.

-30- -31-

emer

C. EQUAL PROTECTION VIOLATIONS

As was pointed out above, the interest

of the adult adoptee in determining his or

her natural identity including all that

entails - knowledge of their ethnic ori-

gins, ancestors, identity and possible

whereabouts of parents, brothers, sisters,

uncles, aunts, cousins, grandparents, etc.

would certainly seem to be fundamental.

Moreover, classification of adoptees as

the only group within the population who

can not have access to their original

birth records is the result of an accident

which occurred shortly after their birth

and at a stage in life when they obviously

had no control over their destiny. Adop-

tion, like sex (Frontiero v. Richardson,

411 U.S. 677, 686 (1974)), race (Loving

v. Virginia, 388 U.S. 1 (1966)), alienage

~*

(Graham v. Richardson, 403 U.S. 376 (1971)),

birth (Levy v. Louisiana, 319 U.S. 79

(1968)) and national origin (Korematsu

v. U.S., 323 U.S. 244 (1944)).

As was demonstrated above,’ none of

the conceivable purposes for the classi-

fications are able to stand the test of

strict scrutiny. It would therefore seem

that the statutory scheme in question

would fall on both equal protection as

well as right to access to information

grounds.

CONCLUSION

For the reasons above stated the

Petitioners respectfully ask that this

Court issue a Petition for Writ of

Certiorari directed to the United States

-33-

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

PATRICK T. MURPHY

GOLDBERG & MURPHY, LTD.

33 N. LaSalle - Suite 2300

Chicago, Illinois 60602

312/782-4530

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