# Opposition — Alma Society, Inc. v. Mellon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 995

## Text

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NOV 16 979

In The

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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.,

~22=

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0964%3A3. Public record. Not legal advice.