# Petition — Yesterday's Children v. Kennedy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0722%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 437 U.S. 904 ## Text 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 ewe - ot rents cieaaniiisatsiptana ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0722%3A1. Public record. Not legal advice.