Opposition — Alma Society, Inc. v. Mellon

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NOV 16 979

In The

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Ld RiCHA we ACD

AK, JR., CLERK

Supreme Court of the United States

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October Term, 1979

No. 79-478

THE ALMA SOCIETY, INC., ET AL.,

Petitioners,

Vs.

IRVING MELLON ET AL.,

Respondents.

On Petition for Writ of Certiorari

BRIEF IN OPPOSITION

GERALD E. BODELL

DAVID H. BERMAN

Attorneys for Respondents

The New York Foundling Hospital

and Jewish Child Care Association

102 East 35th Street

New York, New York 10016

(212) 686-1900

2861

TABLE OF CONTENTS

Table of Cases Cited .... .

Statutes Involved ..... -

Questions Presented. .....

Statement of the Case. ....

Opinion Below. . . « © «© ce « e

Argument

THE SEALED RECORD PROVISION OF

NEW YORK ADOPTION LAW DOES NOT

VIOLATE THE 13TH AMENDMENT;

FURTHER, THIS PETITION DOES NOT

PRESENT A SUBSTANTIAL FEDERAL

QUESTION FOR REVIEW BY THIS

+2 « « «5-6 « se & =

CONCLUSION. . -. «© «© © «© © © « «

TABLE OF CASES CITED

Alma v. Mellon, 495 F., Supp. 912

(S.D.N.Y. 1978)

-Alma v. Mellon, 601 F. 2d 1225

(2nd Cir. 1979)

Brown v. Board of Education, 347

U.S. 483(1954)

Chapman v. Houston Welfare Rights

Organization, —U.S.— 99 S. Ct.

1905 (1979 )

Civil Rights Cases, 109 U.S. 3(1883)

Hodges v. United States, 203 U.S.

1 (1906)

In re Anonymous, 92 Misc. 2d 224,

399 N.Y.S. 2d; 857( surr. Ct.,

£977) .

In re Chattman, 57 A.D. 2d 618,

393 N.Y.S. 2d 768(App. Div.,2nd

Dept. 1977)

In re Maxtone-Graham 90 Misc. 2d

. 107, 393 B.¥.8. 24 835 (Surr. Ct.,

1975)

Jones v. Mayer Co.,392 U.S. 409(1968)

Page

17

19

16,17

16

21

20

20

14,16

In The

Page

SUPREME COURT OF THE UNITED STATES

Palmer v. Thompson, 403 U.S. 217(1971) 19

October, 1979 Term

Plessey v. Ferguson,163 U.S. 537 (1896) 17

Runyon v. McCrary, 427 U.S. 160(1976) * ee

THE ALMA SOCIETY, INC., ET AL.,

Slaughter House Cases, 83 U.S. 36(1873) 11,12,16

8 oid Petitioners,

Twining v. New Jersey, 211 U.S. 78(1908) ll

Ve

OTHER _AUTHORETIES IRVING MELLON ET AL.,

Schwartz "Statutory History of the

a3 4 dents.

United States -Civil Rights 9,10, vi sircotanmasmmonteas

RELEVANT STATUTES

PETITION FOR A WRIT OF CERTIORARI TO THE

42 U.S.C. §1981 13,15,17,18 UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

N.Y.S. Domestic Relations Law §114 2 Seen ee

; Respondents, The New York Foundling Hospital

NYS Soci Services Law § 384-b 6 and Jewish Child Care Association, pursuant to Rule

16 of the revised Rules of the Supreme Court of the

United States move that the final judgment of the

U.S. Court of Appeals for the Second Circuit be —

affirmed or, in the alternative, that this appeal

be dismissed.

ii.

Rae I pire ae os

STATUTES INVOLVED

The relevant statutory provisions, New

York Domestic Relations Law §114 and New York

Public Health Law §4138 are set forth in the Peti-

tion on pp. 4a - 7a (fn. 1).

QUESTIONS PRESENTED

l. Is the sealed record feature of the

New York adoption laws volative of the Thirteenth

Amendment per se, notwithstanding the ability of

Petitioners to obtain such information as they

seek for good cause shown?

2. Does a substantiel Federal question

properly exist for review by this Court?

STATEMENT OF THE CASE

Petitioners are adults, who, having been

- adopted as children, now seek access to certain

=,

records relating to their birth and adoption.

New York statutes provide that these records be

sealed and that access to them may be granted upon

a showing of good cause. Petitioners claim that

such requirement constitutes a violation of the

Thirteenth Amendment per se, and that they should

have access to such records with no showing of

cause whatsoever.

A motion to dismiss the complaint was

granted by the U. S. District Court for the South-

‘ern District of New York (495 F, Supp. 912). This

determination was affirmed by the U. S. Court of

Appeals for the Second Circuit (601 F. 2d 1225).

7 In petitioning this Court for a Writ of

Certiorari, Petitioners have relied solely upon

their argument that the statutes violate the

Thirteenth Amendment, (Pet. p. 4).

-

OPINION BELOW

The U.S. Court of Appeals for the Second

Circuit, in affirming the District Court determina-

tion and dismissing the action, held on the issue

’

presented to this Court that:

This Thirteenth Amendment argument

simply does not conform to the Supreme

Court's interpretations of the Thirteenth

Amendment. The Court has never held that

the Amendment itself, unaided by legisla-

tion as it is here, reaches the "badges

and incidents" of slavery as well as the

actual conditions of slavery and invol-

untary servitude. ( Citations) Indeed

all indications are to the contrary. Not-

withstanding Congress's broad authority to

legislate under §2 of the Amendment, the

Court has directly invoked the Amendment

only to strike down state laws imposing the

condition of peonage. (Citations) Moreover

the Court has indicated that for purposesof

judicial enforcement under the express pro-

hibition of the Amendment itself-"[n] either

slavery nor involuntary servitude. . .shall

exist" the Court will define "slavery" nar-

rowly . . .Abolition of the badges and in-

cidents the Court has left to Congress.

(Pet. 25A)

a oie

ARGUMENT

THE SEALED RECORD PROVISION OF NEW YORK

ADOPTION LAWS DOES NOT VIOLATE THE 13TH

AMENDMENT; FURTHER, THIS PETITION DOES

NOT PRESENT A SUBSTANTIAL FEDERAL QUES-

TION FOR REVIEW BY THIS COURT

Petitioners have chosen to limit their ar-

guments to those concerning the Thirteenth

Amendment and its alleged applicability to

this case. In doing so they have abandoned

their Fourteenth Amendment arguments, as well

as other arguments made below.

The crux of the Thirteenth Amendment

claim is that the New York statues under chal-

lenge providing for sealing of adoption

records and access only upon a showing of good

cause, constitute a "badge" “or "incident" of

slavery and that such badge or incident is

absolutely prohibited by the Thirteenth

Amendment. Thus, claim Petitioners, it is

neither necessary for Congress to pass addi-

tional legislation. nor is there any balancing

test whatever here.

aSe

Petitioners' analogy of slavery to

adoption is faulty ab initio. It is based en-

tirely upon analogizing the situation where a

slave child was sold away from his parents and

grew up separated from them and not knowing then,

with an adoption situation, where, because of

voluntary surrender by the parent(s),a judicial

finding of mental illness or mental retardation

of the parent(s),abandonment by the parent(s) or

permanent iiiabace by the parent(s) ,as well as a

separate judicial finding that adoption is in the

best interests of the child, a youngster is adopted.

(See N.Y.S. Social Services Law, §384-b stating

the requirements for the freeing of children for

adoption. )

There is simply no analogy between these

two situations and no ground for treating adoption

as slavery or any badge or incident thereof.

-6-

Petitioners rely upon "the second in-

cident of slavery" which they have extracted

from Senator Harlan's address in the 38th

Congress. (Pet. pp. 16, 17)

Slavery, said Senator Harlan, robs the

offspring of the care and attention of his

enslaved parents, and destroys the guardian-

ship of enslaved parent over his children.

While this is quite evident, it is wholly

without relevance to the claims petitioners

assert. q The fact remains that the enumerated

badges of slavery were not eradicated by the

Thirteenth Amendment per se and were never so

intended. This is quite evident in the debates

within the 38th and 39th Congress and is sup-

ported in the decisions of this Court.

a- The Congressional Debates.

Two facts clearly emerge from the Con-

gressional debates: if the Congress which framed

the Thirteenth Amendment intended to do anything

more than abolish slavery and involuntary servi-

tude the language it chose was certainly most

inappropriate to achieve a larger purpose; and,

secondly, the idea that the Thirteenth Amendment

per se did any more than abolish slavery was re-

pudiated by many Congressional leaders. Indeed,

the adoption of the Fourteenth Sininailiieiad was

based upon that rejection.

The debate in the House was Opened by

Representative James Wilson of Iowa who intro-

duced the joint resolution to side the proposed

Thirteenth Amendment to the Legislatures of the

States. Like Senator Harlan, Representative

Wilson also recited the enormous evils and

- >

deprivations of civil liberties which resulted

from the institution of slavery. He noted that

slavery “planted itself in opposition" to the

privileges and immunities of the citizens of

the several States, that slavery deprived the

enslaved of the "great rights" enumerated in the

First Amendment - -"[f]reedom of religious opinion,

freedom of speech and press, and the right of

assemblage for the purpose of petition." Schwartz

"Statutory History of the United States-Civil

Rightshereinafter Schwartz)pp. 35-36. Do we

count a denial of these privileges and liberties

among the "badges of slavery"? Or do we confine

badges of slavery to the five incidents which

petitioners select from Senator Harlan's address?

(Pet. 10A). Senator Trumbull also found First

Amendment freedoms entrapped in the web of slavery. |

"If freedom of speech and of the press, so dear to

the freeman everywhere, . . .has been denied us

-

all our lives in one half of the States of the

Union, it was by reason of slavery." Schwartz,

p. 54. And, in the 39th Congress he added the

right to bear arms and the freedom to travel.

Schwartz, p. 107.

| Indeed, Senator Harlan himself recited

not five but seven or more "incidents"of slavery,

adding "as another incident of this institution

. . the suppression of freedom of speech and

of the press" and the preclusion of "the practical

possibility of maintaining schools for the educa-

tion of many of the white race who have no means

-to provide for their own mental culture. It con-

sequently degrades the white as well as the African

race." Schwartz, pp. 73-74. While. > con-

cluding that "none of these necessary incidents of

slavery are desirable! ibid p.74, nowhere

did the Senator say that these undesirable

{. -190 =- a er

evils which slavery impressed upon the enslaved

would be eradicated perforce of the Thirteenth

Amendment alone.

If, as petitioners assert, badges of

slavery were proscribed by the Thirteenth Amend-

ment itself, if the badges and incidents encompass

all the rights which Representative Wilson, Senator

Harlan and Senator Trumbull recite, and if these

badges are proscribed in a non-racial context

(and this is precisely what petitioners claim),

then they contradict what Slaughter-House Cases, 83 U.5

36 (1873) held, and what Twining v. New Jersey, 211

U.S. 78(1908) reaffirmed, a rationale to which

the United States Supreme Court has adhered down

to this day.

Under petitioners' theory, and accept-

ing all the incidents of slavery set forth in the

Congressional debates, the Thirteenth seiviiieails

incorporates the First Amendment and the Second

It

Amendment, if not the entire Bill of Rights.

ntten

j ivi immunities of

incorporates the privileges and immu B. The Acts of Congress-The Court's Thirteenth

Amendment Decisions

state citizenship, the right to travel, and the

right to an education for those "who have not the The Civil Rights Act of 1866, enacted by

ania to provide for their own mental culture." Congress pursuant to Section 2 of the Thirteenth

Slaughter-House Cases refused to incorporate the Amendment and pursuant to the Necessary and Proper

Bill of Rights or the Article IV Privileges and Clause of Article I, §8 of the Constitution, has

Immunities Clause into either the Thirteenth come down to us at 42 U.S.Cg §1981 and 1982. §1981

. Amendment or into the Fourteenth Amendment's Pri- reads,

All persons within the jurisdiction

of the United States shall have the same

right in every State and Territory to make

and enforce contracts, to sue, be parties,

give evidence, and to the full and equal

benefit of all laws and proceedings for

the security of persons and property as

is enjoyed by white citizens...

vileges and Immunities Clause. Petitioners’ ar-

gument would indeed render the Fourteenth Amend-

ment superfluous.

Section 1982 reads:

All citizens of the United States shall

have the same right, in every State and Ter-

ritory, as is enjoyed by white citizens

thereof to inkKerit, purchase, lease, sell,

hold and convey real and personal property.

-12- “1 Be

U.S. 409, 438-439 (1968) ;

Suppression of those rights, the same

rights as are enjoyed by white citizens, would con-

stitute burdens and disabilities, badges and in-

cidents of Negro slavery. Jones v. Mayer Co.,392

; RunyOn v. McCrary,

427 U.S. 160, 179(1976). Petitioners argue that

the Thirteenth Amendment, by its own unaided force

and effect, abolished all incidents and badges: of

slavery and that these incidents and badges of

slavery were abolished for all persons, whatever

their race. They argued below that the Act of

1866 was simply intended and designed "to grant

additional and more efficient and forceful im-

plementation to that Amendment." Brief for Ap-

pellants, pp. 44-45,47. (Emphasis supplied). The

Act of 1866 did more than create remedies and

v establish penalties. It gave the same right to

sue, to be parties, to give evidence, to pur-

chase, inherit, hold and convey real property.

até <

These ase substantive rights. These substantive

provisions eradicated three of Senator Harlan's

incidents and badges of slavery: incapacity to

acquire and hold property, denial of status in

the courts and "robbery" of the right to testify.

These substantive provisions were debated for

several months in the 39th Congress, several

months after the Thirteenth Amendment had been

ratified, by the very men who drafted that Amend-

ment. Are we to assume, as Petitioners do, that

these lengthy debates respecting these substantive

provisions of the present §§1981 and 1982 were

all.a frolic and a banter on the part of the 39th

Congress?

By its own unaided force and effect the

Thirteenth Amendment abolished slavery and in-

voluntary servitude and it abolished peonage, a

form of involuntary servitude, as well. "If

213

Mexican peonage or the Chinese coolie labor sy-

stem shall develop slavery of the Mexican or

Chinese race within our territory, this amend-

ment may safely be trusted to make it void,"

Slaughter-House Cases, supra, 16 Wall. (83 U.S.)

at 72, a construction confirmed in Hodges v.

United States, 203 U.S. 1 (1906). But,"[{w]hether

or not the Amendment itself did any more than

that... .it is at least clear that the Enabling

Clause of that Amendment empowered Congress to

do much more." Jones v. Mayer Co., supra, 392

U.S. at 439. (Emphasis in original). The Enab-

ling Clause clothed "Congress with the power to

pass all laws necessary and proper for abolish-

ing all badges and incidents of slavery in the

United States." Civil Rights Cases, 109 U.S.

3, 20(1883). (Emphasis added). This Court,

nonetheless, has rejected over-extended con-

ceptions of "invoiuntary servitude." The

aléu

denial of admission to public inns, restaurants

and theatres and the segregation of races in

public conveyances were held not to violate the

Thirteenth Amendment. Civil Rights Cases, supra;

Plessey v. Ferguson, 163 U.S. 537(1896). The

segregation to which Homer Plessey was subjected

-On public transportation fell only on Fourteenth

Amendment grounds in Brown v. Board of Education,

347 U.S. 483(1954); and both Plessey and Civil

Rights Cases would fall today under the statutory

weight of §1981 and the holding of Runyon v. Mc-

Crary, supra.

In no case has the Court ever suggested

that the Thirteenth Amendment os abolished any-

thing more than slavery, involuntary servitude or

peonage.

The badges and veiiiiontie of slavery are

left for Congress to eradicate pursuant to the

Enabling Clause of the Thirteenth Amendment and

wit

the Necessary and Proper Clause of Article I, §8

- of the Constitution And that power to eradicate Thirteenth Amendment nor any statute enacted there-

*

is vested in Congress only when the "badges" result under.

from a system of slavery and are based upon a racial Any doubt that this is so was resolved

7 by this Court in Palmer v. Thompson, 403 U.S. 217,

classification--a class as between whites and blacks

(Runyon v. McCrary, supra) as set forth in §§1981 226(1971) where the Court in rejecting a -"faint

and 1982, and. perhaps, too, as suggested in and unpersuasive" argument that closing of a pub-

Slaughter-House Cases when those badges result lic pool violated the Thirteenth Amendment,based

from other systems of slavery and are based upon a on an alleged " badge or incident" of slavery, held

classification of Mexicans and non-Mexicans or that such a reading of the Thirteenth Amendment

Chinese and non-Chinese “would severly stretch its short simple words and

If New York's qualified disclosure laws do violence to its history" and that the failure

do not create a system of slavery or impose involun- -

Y y ° *This Court has only recently reaffirmed the

doctrine that the Thirteenth Amendment is limited

to racially based claims of discrimination. In

Chapman v. Houston Welfare Rights Organization,

99 Ss. Ct. 1905, 1918, —U.S.—(1979) the Court

stated(FN 41): "The removal statue was enacted in

the Civil Rights Act of 1866 under the authority

of the Thirteenth Amendment. 6§1343(3) and(4) on

: the other hand, are based upon the authority of

the Fourteenth Amendment which, unlike the Thir-

teenth Amendment, is not limited to racially based

claims of inequality."

tary servitude or peonage--and obviously they do

not--and if there is no racial discrimination in

those laws or in their administration--and none

has been alleged--those laws violate neither the

atti

-19-

of Congress to pass "appropriate legislation"

in this area precluded recourse to the Amendment.

B

Further, this petition does not present

a substantial Federal question for review by this

Court. Petitioners assert no conflict in the Cir-

cuits nor indeed of any judicial authority on this

issue. In addition, adopted persons seeking dis-

closure of their background have invariably gone

to the State Courts, and indeed the entire matter

of adoption is one traditionally regulated by stae

statute. In New York, e.g., State Courts have

granted access to records in certain situations

where good cause has been-shown and denied it in

the absence thereof. .See, e.g. In Re Chattman,

57 A D 2d 618, 393 N.Y.S. 2d 768(App..Div..2nd Dept.

1977) (information about genetic conditions); In

Re Maxtone-Graham, 90 Misc. 2d 107, 393 N.Y.S.

-20-

2d 835(Surr. Ct. 1975) (good cause not shown); In

Re Anonymous, 92 Misc. 2d 224, 399 N.Y.S. 2d 857

(Surr. Ct. 1977) (aid in psychiatric or psychologicai

treatment). |

Thus none of the guidelines set forth

in Rule 19 of the Rules of this Court are present

here. While we recognize that these rules are

neither controlling nor do they fully measure the

Court's discretion, it is nevertheless noteworthy

that such factors as guide the Court are wholly

absent here.

atic

CONCLUSION

The challenged statute is in all res-

pects constitutional. Further, this Petition

“presents no substantial federal question.

Dated: yfof7"

Respectfully submitted,

Attorney for Jewish Child

Care Association of New

York and The New York

Foundling Hospital

Office & P.O. Address:

102 East 35th Street

New York, New York 10016

212-686-1900

GERALD E. BODELL, ESQ.

DAVID H. BERMAN, ESQ.,

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