Jurisdictional Statement — Mason v. Abrams

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Office-Supreme Court, U.S.

Fina YD

MAY 28 1981

SOE Tc cssnen. evens

CLERK?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

LINDA F. MASON,

Appellant,

—_—V.—

ROBERT B. ABRAMS, ATTORNEY GENERAL

OF THE STATE OF NEW YORK,

Appellee.

ON APPEAL FROM THE

NEW YORK COURT OF APPEALS

JURISDICTIONAL STATEMENT

MARTIN GUGGENHEIM

Suite 1501

80 Fifth Avenue

New York, New York 10011

(212) 924-3200

Attorney for Appellant

QUESTIONS PRESENTED

IS SECTION 114 OF THE NEW YORK DOMES-

TIC RELATIONS LAW, WHICH DENIES AN

ADULT ADOPTEE ACCESS TO HER ADOPTION

RECORDS EXCEPT UPON A SHOWING OF GOOD

CAUSE, AN UNCONSTITUTIONAL INFRINGE-

MENT OF AN ADOPTEE'S RIGHT TO DUE

PROCESS PROTECTION FROM INVASION OF

HER RIGHTS OF PRIVACY AND PERSONAL

AUTONOMY?

DOES SECTION 114 OF THE NEW YORK

DOMESTIC RELATIONS LAW IMPINGE UPON

AN ADOPTEE'S RIGHT OF FREE SPEECH

PROTECTED BY THE FIRST AMENDMENT A

NECESSARY PART OF WHICH IS FREEDOM

OF INQUIRY AND THE RIGHT TO RECEIVE

INFORMATION?

Itt

DOES THE GOOD CAUSE REQUIREMENT OF

SECTION 114 OF THE NEW YORK DOMESTIC

RELATIONS LAW, AS APPLIED IN APPEL-

LANT'S CASE, RESULTING IN DENIAL OF

ACCESS TO HER ADOPTION RECORDS, MAKE

THE NEW YORK STATUTE AN UNCONSTITU-

TIONAL INFRINGEMENT OF THE PROTECTED

RIGHT OF PRIVACY, PERSONAL AUTONOMY

AND FREE SPEECH?

PARTIES TO THE PROCEEDING

The parties to this proceeding are Linda

F. Mason, appellant and Robert B. Abrams,

Attorney General of the State of New York,

appellee.

TABLE OF CONTENTS

QUESTIONS PRESENTED i Je At 1S 2 ie ko 9 of & oe @ oo oF eB -

PARTIES TO THE PROCEEDING. ..ccccsesvees i

TABLE OF AUTHORITIES eeeeseeeeesvseeeeeeeeee iv

JURISDICTIONAL STATEMENT... seeceeeseees 1

OPINIONS (0s) rr rr rrerrrrrrrrrre rn 2

STATEMENT ON GROUNDS ON WHICH

JURISDICTION OF THIS COURT IS

8 Tre rrrrrererrrrerrrrrres 2

CONSTITUTIONAL PROVISIONS AND

STATUTES Sk Oy.) ra a 3

STATEMENT OF 6+ > AAA ee ee 4

THE FEDERAL QUESTIONS PRESENTED

ARE gg 6 i eae ee ee 11

SECTION 114 IS UNCONSTITUTIONAL

ON ITS FACE BECAUSE IT INTER-

FERES WITH CONSTITUTIONALLY

PROTECTED FUNDAMENTAL RIGHTS.....-. 13

A. PRIVACY... ccccccccccecscvcscscces 15

1. IDENTITY CRISIS......0e002- 18

2. GENETIC BACKGROUND....++++- 19

B. FIRST AMENDMENT... eeecececeeeeee 20

SECTION 114 IS UNCONSTITUTIONAL

AS APPLIED TO APPELLANT IN THIS

- rrr. yr rerrrrerrrerrrrerrer 23

iii

A. PROTECTION OF THE ADOPTEE.....

B. MAINTENANCE OF CLOSE

RELATION BETWEEN ADOPTEE

AND ADOPTIVE PARENT...-eseeese%

C. PRIVACY OF NATURAL

PARENTS cccccececceecesercccees

CONCLUSION. cccccccccceceeeeseeseeeecoes

INDEX TO APPENDIX

APPENDIX A

OPINION OF THE NEW YORK COURT

OF APPEALS DECIDED ON FEBRUARY

24, LIMB cccccccccccccescecscccececes

APPENDIX B

OPINION AND ORDER OF THE

SUPREME COURT OF THE STATE

OF NEW YORK, APPELLATE

DIVISION, THIRD DEPARTMENT,

FILED ON NOVEMBER 29, 1979..ceeeecees

APPENDIX C

OPINION OF THE SURROGATE'S

COURT, BRONX COUNTY, FILED

ON JANUARY 17, 19O7TB.ceeeeeevesevecces

APPENDIX D

OPINION AND ORDER OF THE

SURROGATE'S COURT, BRONX

COUNTY, FILED ON OCTOBER

26, 1978 AND MARCH 23, 1979..eeeeeees

APPENDIX E

FINAL ORDER OF THE NEW YORK

COURT OF APPEALS ccccocceoeocccececcecee

APPENDIX F

NOTICE OF APPEAL: cccoccceccceseececes

TABLE OF AUTHORITIES

Cases:

Alma Soc. v. Melion, 601

cert. den.

444 U.S. 995 (2979) coceccccsoctecose ll

Baumgartner v. United States,

UeBe 665 (L944) vcoccccevecccocce 25

Beyer v. LeFeore, 186 U.S.

eeeeeeeneeeeneeeeeeneeneeeee 25

Chamberlain v. Alexander, 419

i: 7 Supp. 235 (Ss. D. Ala. 1976) e*e0neees 30

Eisenstadt v. Baird, 405 U.S.

CB) coccecccceccccecesseceeos

Griswold v. Connecticut, 381

° e eeeesevoeaeeoeeeeeeeeeee 15,21

Matter of Linda F. M., 95

Misc.2d 581, 409 N.Y.S.2da

638 CADIS) ce cdecesecscessensecoose 2,9,10

Matter of Linda F. M., 92

Misc.2d0 628, 401 N.Y.S.2d

960 C1OTE) cocccoccecsececeeees eee -

Martin v. Struthers, 319

Ve eeeeoeeeeenepeeneeneeeeeee 20

May v. Anderson, 345 U.S.

e*eeeeoeeeeeenepeenseeeeseeeeeeeee 14

Heyer v. Nebraska, 262 U.S.

eeeeeeeseeneeeeeeeeeeeeneeee 14

Mills v. Atlantic City Dept.

of Vital Statistics, 148

N.J. Super. 302, 372 A.2d 646

(Ch. Div. BOTT) cocccseocoecceocese 30

O'Conner v. Donaldson, 422

U.S. 563 DTCC Caled ech ceesceews 27

People ex rel Scarpetta v.

Spence-Chapin Adoption serv.,

r: N.Y.2d LP cert. den., 404

U.S. 805 8) ye) re Ter er eee 26

Red Lion Broadcasting Co. Ve

) - eCes U. 7 DPeoscocce 20

Roe v. Wade, 410 U.S. 113 (1973).... 15,19

Shapiro v. PORP SON. 394

U. _ eeeeeoeeeeeeeeeeeneeee 23

Skinner v. Oklahoma, 316

Uebe 535 ee a a a an 14

ee Vv. Georgia, 394 U.S.

e*eeeeneeneeeenee-#s - @@eeeeeee? 20,21,22

United States v. Reidel, 402

U.S. 351 i.e eee ek ak eacee sé 21,22

Statutes:

Ala. Code Tit. 26-10-4

(Cum. Supp. L971) cccccccccccoseces 12

Conn. Gen. Stat. Ann

§7-53 TROT Sl ee ee eeeececsecoeoccovece 12

Fla. Stat. Ann. §382.22 (1973) ecccce 12

Kan. Stat. Ann. §65-2423 (1972) wccce 12

La. Rev. Stat. Ann §40-73 (1965) cece

Minn.

Stat. Ann. §144.1761

subd. 3(a) (West Supp. 1981).......

N.Y. Dom. Rel. L. §114

(McKinney's LOTT) cocccccccecececes

Title 5 U.S.C. Section 552(b) (6)....

Title 5 U.S.C. Section -) >) Pera

Title 28 U.S.C. Section 1257(2).....

Miscellaneous Authorities:

Emerson, Toward a General Theory

of the First Amendment, 72

Yale L. as 877 ae

Fried, Privacy, 77 Yale L. J.

475 ( eeeeeeeeeeeeeeeeeeeeeeee

Hanley, A Reasonable Approach

to the Adoptee's Sealed

Records Dilemma, 2 Ohio N. L.

ev. eeeeoeoevoeeeeeeveeeeeee

S. Hufstedler, The Directions

and Misdirections of a Con-

Stitutional Right of Privacy

TEI TS) coccccceccccececeseseccececeos

Sorosky, Baron, Pannor, The

Adoption Triangle (1978).....eeee.

Sorosky, Baron, Pannor,

Identity Conflict in Adoptees,

45 Am. L. of Orthopsychiatry

(1975) ccccccccccccccccccccccece

18,19

vii

A. Westin, Privacy and

Freedom ( eeeereee3eneeeneeneeeeeneeee 16, A?

Note, On Privacy: Constitutional

Protection for Personal

NAST, 48 N.Y.U.L. Rev.

Tad cove crececeeeesesseeeces 16

Note, The Adult Adoptee's Con-

stitutional Right to Know

His Origins, 48 [; Gabe ms

Rev. 3975) coccccecscceccecece 19

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

LINDA F. MASON,

Appellant,

Vv.

ROBERT B. ABRAMS, ATTORNEY GENERAL

OF THE STATE OF NEW YORK,

Appellee.

On Appeal From The

New York Court of Appeals

JURISDICTIONAL STATEMENT

Appellant Linda F. Mason appeals from

the order of the New York Court of Appeals

entered February 24, 1981 affirming the de-

nial of access to her of her own adoption

records.

OPINIONS BELOW

The opinion of the Court of Appeals of

New York, dated February 24, 1981, is at-

tached to this jurisdictional statement as

Appendix A. Prior opinions in the same pro-

ceeding include the written opinion and

order of the Appellate Division, First De-

partment, dated November 27, 1979, attached

as Appendix B, a written opinion and final

decree of the Surrogate's Court, Bronx

County, entered on March 23, 1979, reported

at 95 Misc.2d 581, 409 N.Y.S.2d 638 (1978),

attached as Appendix C and a written opinion

of the Surrogate's Court, reported at 92

Misc.2d 828, 401 N.Y.S.2d 960 (1978), at-

tached as Appendix D.

STATEMENT OF GROUNDS

ON WHICH JURISDICTION OF

THIS COURT IS INVOKED

The proceedings below were commenced in

the New York Surrogate's Court by appellant,

Linda F. Mason, in order to gain access to

her adoption records. Section 114 of the

New York Domestic Relations Law (McKinney's)

states that no person shall be allowed

access to those records except upon court

order after a showing of "good cause." The

final order of the New York Cou.t of Appeals,

which upheld the constitutionality of sec-

tion 114 and affirmed the lower court's

denial of access was entered on February 24,

1981 and is attached as Appendix E. A No-~-

tice of Appeal was filed in the Court of

Appeals and the Surrogate's Court, Bronx

County on May 4, 1981 and is attached as

Appendix F. Jurisdiction is conferred on

this Court by 28 U.S.C. §1257(2).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The relevant constitutional provisions

involved are the First and the Fourteenth

Amendments to the United States Constitution.

Section 114 of the New York Domestic Rela-

tions Law provides, in relevant part:

-.-No person shall be allowed

access to...sealed [adoption]

records and order and any in-

dex thereof except upon an

order of a judge or surrogate

of the court in which the order

was made or of a justice of the

supreme court. No order for

disclosure or access and in-

spection shall be granted ex-

cept on good cause shown and

on due notice to the adoptive

parents and to such additional

persons as the court may direct...

STATEMENT OF FACTS

Appellant Linda F. Mason was born on

July 19, 1940 to parents unknown to her and

was adopted by Dr. Irwin Mason and his wife,

Anne Mason on March 4, 1941. [T.17]*

Appellant first learned that she was adopted

in July of 1971 when she was thirty-one years

old. [T.16, 19] Her search for the identity

of her natural parents began two years later

and continues to the present.

* ({f. ] refers to the page number of the

transcript of the hearing held in the Sur-

rogate's Court, Bronx County on March 16,

1978.

In 1977, having exhausted other means of

locating her natural parents, appellant com-

menced this proceeding by petition in the

Surrogate's Court, Bronx County to obtain

access to her adoption records and her ori-

ginal birth certificate. From the outset of

this proceeding, appellant has contended

that section 114 of the New York Domestic

Relations Law is unconstitutional both on

its fact and as applied to her. The Attor-

ney General of New York appeared pro se in

the Surrogate's Court, and at every level of

this litigation, in support of the constitu-

tionality of the statute.

On March 16, 1978 a hearing to determine

whether appellant possessed the statutory

requisite's "good cause" was held in the

Surrogate's Court. At that hearing, testi-

mony was presented to show appellant's psy-

chological reaction to the news of her

adoption, and to her consequent state of

ignorance about her true identity.

Linda Mason testified she had long sus-

pected that she was adopted. However, her

adoptive father had discouraged inquiry.

{T.23] Then, at age thirty-one she was told

for the first time that she was, in fact,

adopted. ([T.26]

After hearing that she was adopted, her

life changed dramatically. Although she

married in 1972, the year after she learned

of her adoptive status, appellant refused to

have children of that marriage because she

had began to fear genetic diseases, not know-

ing her heredity.* [T.20, 21] The marriage

itself broke up in 1974, eventually ending

in an anullment because she did not want

children for fear of incest, and because she

had become increasingly preoccupied with dis-

covering her identity. [T.28]

bd She had one child by a marriage that

ended in divorce before she learned that she

was adopted. [T.20]

Around the time that her second marriage

broke up, appellant began a thorough search

for the identity of her parents which ulti-

mately resulted in the filing of the peti-

tion in the Surrogate's Court. [T.25-26,

31-32] Appellant testified that she wants

access to her records because she feels "cut

off from the rest of humanity" [T.36] and

wants "to know who I am." [T.28]

Appellant sought treatment from Dr.

William Reynolds, a psychologist who has

studied adoptees and specialized in their

treatment,* because she was very distressed

about the conditions of her life after learn-

ing of her adopted status. [T.127] He

* Dr. Reynolds was, at the time of the

hearing, an associate professor at Queens

College, the City of New York, with a Ph.D

in psychology from the University of Iowa.

He is a member of the American Psychological

Association, the American Psychology and Law

Society, the Society for Adolescent Medi-

cine, the Eastern Psychological Association,

and the Western Psychological Association.

Dr. Reynolds is a specialist in the psycho-

logy of adoptees. [T.103-110]

testified at the hearing that she was ina

"fairly large life crisis" and was extremely

disturbed by the knowledge that she was

adopted. [T.127] He had seen appellant

five times for one hour each session; [T.125]

he diagnosed her as having, at that time, an

"inadequate personality" [T.130] and felt

that disclosure of her records would be very

beneficial to her. [T.131] He concluded

that she was engaged in obsessional thinking

about the adoption, [T.130-132] that the late

discovery of her status was the predominant

factor in her negative psychological state

(T.133] and that psychotherapy for appellant

would be much more successful after she

learned the identity of her natural parents.

[T.143]

Dr. Edward Gendel, a psychiatrist and

geneticist testified that there are about

2,300 different genetic diseases, and that

in the U.S. population as a whole, about

15,000,000 people have a genetic disease.

{T.64] Approximately 25 percent of all

hospital admissions of children are for ill-

ness having genetic origins. [T.64] He

testified that knowing a family's medical

history can be extremely important for the

prediction of certain hereditary diseases.

(T.62] In addition, he indicated that people

with a high likelihood of giving birth to

children with genetic defects can be moni-

tored with extra care. [T.66-67] He also

testified that there is an increased risk of

genetic problems if one marries someone in a

close family relationship. [T.78]

After the hearing and submission by

appellant and the appellee of memoranda of

law, the Surrogate's Court denied appellant's

request for access to her records. Matter of

Linda F. M., 95 Misc.2d 581 (1978); pp. ld-

32d. The court held that appellant had failed

to show good cause, stating that an adoptee

"must show a present need to view the sealed

records...f{and that] [t]his need must rise

above mere desire or curosity" (citations

omitted), p. 10d. Furthermore, the court

flatly rejected appellant's constitutional

challenge, holding that "[nJo right to pri-

vacy of [appellant] is conceivably at issue.

If any person's privacy is involved, it is

the possible right to privacy of the natural

parents." p. 21d The court concluded that

no fundamental right is affected by the

statute, reasoning, in part, that "(c)ount-

less citizens drink the cup of liberty to

the fullest extent without any information

as to their forebears." p. 26d Having found

that because there was neither a fundamental

right nor a suspect class affected by the

statute, the strict scrutiny test was not

applicable. Further, using the rational

basis test, the court found section 114 to

be a rational scheme promoting infants' wel-

fare by facilitating adoption. p. 3ld

The Appellate Division, First Department

affirmed, adopting the reasons of the Sur-

rogate's Court. pp. lb-2b The Court of

Appeals upheld the decisions of the courts

below, accepting their finding that appel-

lant's desire to see her records was based

on mere curiosity. p. 6a That court ruled

that section 114

shields the adopted child from

possibly disturbing facts sur-

rounding his or her birth and

parentage, it permits the adop-

tive parents to develop a close

relationship with the child

free from interference or dis-

traction, and it provides the

natural parents with an anony-

mity that they may consider

vital (citation omitted). p. 4a

Finally, the Court of Appeals rejected ap-

pellant's claim that Section 114 is uncon-

stitutional, relying upon Alma Soc. v.

Mellon, 601 F.2d 1225, cert. den. 444 U.S.

995 (1979). p. 10a

THE FEDERAL QUESTIONS

PRESENTED ARE SUBSTANTIAL

The result reached in this case is at

odds with an unbroken line of decisions in

this Court. Appellant knows of no case in

which this Court upheld a statutory scheme

which restricted critical information about

an individual based upon a justification

merely of a rational basis for the restric-

tion. Appellant contends that the New York

statute interferes with her constitutional

right of privacy and her First Amendment

rights cf inquirying and access to informa-

tion.

Although this case is not in substantial

conflict with decisions of the courts in

other states, a number of states have statu-

tes which would have allowed appellant access

to her birth records if she was born there.

Several states allow the adoptee access to

the original birth certificate automatically

or upon demand. See, e.g. Ala. Code Tit.

26-10-4 (Cum. Supp. 1971); Conn. Gen. Stat.

Ann. §7-53 (1973); Fla. Stat. Ann. §382.22

(1973); Kan. Stat. Ann. §€5-2423 (1972); La.

Rev. Stat. Ann. §40-73 (1965). In Minnesota,

. the court is required to grant a request for

disclosure of an adoptee's original birth

certificate "if, after consideration of the

interests of all persons involved, the Court

determines that disclosure of the information

would be of greater benefit than nondisclo-

sure" provided that the natural parents have

not filed an affidavit that the information

on the birth certificate should not be re-

voked. Minn. Stat. Ann. §144.1761 subd. 3(a)

(West Supp. 1981). The interests involved

in this case affect citizens throughout the

United States and are worthy of plenary re-

view by this Court.

SECTION 114 IS UNCONSTITUTIONAL ON

ITS FACE BECAUSE IT INTERFERES WITH

CONSTITUTIONALLY PROTECTED FUNDAMEN-

TAL RIGHTS

Appellant challenges section 114 of the

New York Domestic Relations Law as an uncon-

stitutional intrusion into perhaps the most

basic and personal aspect of an individual's

existence: her origin, ancestry and genetic

heritage. The statutory scheme involved in

this case deprives appellant of the informa-

tion most basic to her ability to lead a full

and productive life including information

concerning who she is, who her forebearers

are and what her genetic heritage is. With-

out this information, the adult adoptee

cannot intelligently exercise the rights to

"conceive and raise his or her children,

rights this court has labeled ‘essential’

(Meyer v. Nebraska, 262 U.S. 390, 399 (1923)),

‘basic civil rights of man' (Skinner v.

Oklahoma, 316 U.S. 535, 541 (1943), and

‘([r]ights more precious...than property

rights'." May v. Anderson, 345 U.S. 528, 533

(1953).

The courts below erroneously applied the

rational basis test in determining the con-

stitutionality of section 114. This error

was committed because of a failure to recog-

nize the fundamental rights intruded upon by

the statute.

A. Privacy

Among the fundamental constitutional

rights affected by the New York statute is

the right of privacy. This Court has consis-

tently recognized a fundamental constitu-

tional "right of privacy" which neither the

Federal Government nor the states may invade.

Griswold v. Connecticut, 381 U.S. 479 (1965);

Roe v. Wade, 410 U.S. 113 (1973). Encom-

passed within the right of privacy is the

family constellation. "If the right of pri-

vacy means anything, it is the right...

to be free from unwarranted government in-

trusion into matters so fundamentally affect-

ing a person as the decision whether to bear

or beget a child." Eisenstadt v. Baird, 405

U.S. 438, 453 (1972).*

* Congress has recognized that the right

of privacy and the right to receive informa-

tion are both implicated by the withholding

of information contained in federal agency

record systems. In response, it enacted the

Freedom of Intormation Act, 5 U.S.C. §552 and

the Privacy Act, 5 U.S.C. §552a. Both con-

tain provisions for individual access to

federal reccrds.

There exists no clear consensus by com-

mentators on the definition of privacy nor

on the nature cf the interest the privacy

right is designed to protect. Professor

Fried has stated that privacy "is control

over knowledge about oneself" and in this

context is "an aspect of personal liberty."

Fried, Privacy, 77 Yale L.J. 475, 483 (1968).

Another commentator has stated that the

“essence of privacy is the notion that cer-

tain basic decisions about how one will con-

duct his or her life--whether on a day-to-

day basis for in a long-term sense--are re-

served to the individual." Note, On Privacy:

Constitutional Protection for Personal

Liberty, 48 N.Y.U.L. Rev. 670, 705 (1973).

Along the same lines, in his landmark book,

Professor Westin stated that "the autonomy

that privacy protects is also vital to the

development of individuality and conscious-

ness of individual choice of life." A.

Westin, Privacy and Freedom, 34 (1967).

Former Judge Shirley Hufstedler eloquently

expanded upon this concept:

The personal interest to be pro-

tected by a right or privacy is

the individual's interest in

preserving his essential dignity

as a human being. It is his in-

terest in securing the autonomy

of his personality. It is an

interest that society shares,

because a society cannot long

endure that is unable to pre-

serve to its members the auto-

nomy of their personalities. If

the right is broad enough to en-

compass that interest, it is

grand enough to deserve the tri-

bute that it is the most compre-

hensive of rights and the most

valued.

S. Hufstedler, The Directions and Misdirec-

tions of a Constitutional Right of Privacy

15-16 (1971) (emphasis added).

Under the above definitions, appellant

has a privacy right to her adoption records

since they peculiarly affect her and her

search for personhood. Her right to know

the identity of her natural parents is a

right basic to her inherent human dignity.

This is particularly true in light of psy-

chological evidence proving that such know-

ledge is crucial to identity development.

See Hanley, A Reasonable Approach to the

Adoptee's Sealed Records Dilemma, 2 Ohio

N.L. Rev. 542, 552 (1975).

1. Identity Crisis

Experts who have studied adoptees have

established that identity formulation is im-

paired in adoptees by their lack of know-

ledge about their past. An adoptee suffers

from a "geniological bewilderment" when de-

prived of knowledge of the identity of his

natural parents. Sorosky, Baron, Pannor,

Identity Conflict in Adoptees, 45 Am. L. of

Orthopsychiatry 18, 20-21 (1975). This lack

of knowledge produces a gap in the adoptee's

sense of identity -- a gap that "contributes

to a sense of distance from people, a sense

of unicality, that adopted people rather con-

sistently feel." Sorosky, Baron, Pannor,

The Adoption Triangle 138 (1978). The adop-

tee is left with the knowledge that "an

essential part of himself...has been cut off

and remains on the other side of the adoption

barrier." Identity Conflict in Adoptees,

Supra at 20-21. Furthermore, identity formu-

lation is a life-long process and the adop-

tee's psychological need to understand his

origins continues into adulthood. Note, The

Adult Adoptee's Constitutional Right to Know

His Origins, 48 S. Cal. L. Rev. 1196, 1202

(1975).

2. Genetic Background

Inherent within the right to the "control

of one's body," Roe v. Wade, supra, is the

right to knowledge about one's medical his-

tory. Knowledge is essential to meaningful

control. Recent advancement in medical

science requires the conclusion that con-

tinued withholding from adoptees of birth

records violates the adoptees' right of per-

sonal autonomy and privacy. Lack of the most

fundamental knowledge of family medical his-

tory may inflict the gravest damage on adop-

tees and their families. Since some gene-

tic diseases manifest themselves only in

adult life [T.76], knowledge of one's origin

and family background is important in the

prevention or treatment of diseases which

are genetically determined.

B. First Amendment

Section 114 also impinges upon appel-

lant's fundamental First Amendment right of

free speech, a necessary part of which is

freedom of inquiry and the right to receive

information. Stanley v. Georgia, 394 U.S.

557 (1969); Red Lion Broadcastiny Co. v.

F.C.C., 395 U.S. 367 (1969); Martin v.

Struthers, 319 U.S. 141 (1943).

As this Court has indicated,

"[T)he State may not, consis-

tently with the spirit of the

First Amendment, contract the

spectrum of available knowledge.

The right of freedom of speech

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...and freedom of inquiry,

freedom of thought and freedom

to teach...."

Griswold v. Connecticut, 381 U.S. at 482.

The documents involved here are public

(the birth certificate) or judicial records

(the adoption proceeding). That appellant

needs access to them for her individual de-

velopment does not take her outside the First

Amendment. It has been suggested by some

commentators that the facilitation of indi-

vidual development is an independent purpose

of the First Amendment. Emerson, Toward a

General Theory of the First Amendment, 72

Yale L. J. 887, 879-81 (1963). The right to

receive information recognized in Stanley v.

Georgia, supra, embraces matters that con-

tributes only to individual development in a

private setting and is not limited to factual

materials of a clear public interest impor-

tant for democratic decision making. Con-

curring with the Court's decision in United

States v. Reidel, 402 U.S. 351 (1971),

Justice Harlan observed: "(T]he ‘right to

receive' recognized in Stanley...is a right

to protective zone ensuring the freedom of a

man's inner life, be it rich or sordid."

United States v. Reidel, 402 U.S. at 359-60

(emphasis supplied).

The "right to receive information and

ideas, regardless of their social worth...is

fundamental to our free society." Stanley

v. Georgia, 394 U.S. at 564. An adult adop-

tee's right to receive information concern-

ing something as central to his identity as

his natural origins can hardly be less

fundamental than the right to receive the

information contained in sexually explicit

materials.

An obvious distinction between ordinary

reading materials and adoption records is

that the latter arguably affect the interests

of others, specifically the natural parents.

This distinction is useful analytically only

when determining whether section 114 serves

the necessary compelling state interest.

The fact that a particular right of an in-

dividual may infringe upon another's rights,

does not affect the character of the right

itself. The New York courts erroneously

failed to recognize the fundamental character

of appellant's rights. Section 114 was up-

held only by finding a raticnal basis for

its existence. Appellant submits that she

has a fundamental First Amendment right of

access to her birth records. Accordingly,

the Court of Appeals should have applied a

strict scrutiny test, demanding that New

York present a compelling reason for its

denial of access to the vital information

contained in appellant's adoption records.

See Shapiro v. Thompson, 394 U.S. 618 (1969).

SECTION 114 IS UNCONSTITUTIONAL AS

APPLIED TO APPELLANT IN THIS CASE

Appellant's inability to satisfy the

"good cause" requirement of section 114 ren-

ders the statute unconstitutional as applied

to her. Appellant has demonstrated a strong

desire to see her records. She has also

established that her only living adoptive

parent approves of disclosure of those re-

cords. pp. 3a; lc; [T.12-14] New York has

not justified its decision to frustrate the

legitimate wishes and needs of appellant.

Uncontradicted evidence was present at

the hearing to show that appellant was for-

mally told that she was adopted at the late

age of thirty-one years and that this infor-

mation has profoundly, and adversely,

affected her life. She is ina "fairly large

life crisis." [T.127] She has become ob-

sessed with learning as much information as

possible about her roots. She is in constant

fear of committing incest and may never again

marry and bear children because of this. Her

own psychologist recommended as the first

phase of her treatment that she obtain her

birth records. She wants and needs to do

that.

It is true that the Court of Appeals

characterized appellant's desire to have

access to her birth records as springing

"from mere general curiosity about her par-

entage, rather than from a concrete and com-

pelling need." p.6a Although ordinarily

this finding of "fact" precludes review by

this Court, it has been recognized that the

conclusion that may appropriately be drawn

from the whole mass cf evidence is not always

the ascertainment of the kind of "fact" that

precludes consideration by this Court. See

e.g. Beyer v. LeFeore, 186 U.S. 114 (1902);

Baumgartner v. United States, 322 U.S. 665,

671 (1944).

Regardless of the characterization of

appellant's need for access, appellant has

submitted to the courts below legitimate

reasons for granting her access to her birth

records. The record is wholly devoid of rea-

sons for not granting appellant access. The

only reasons identified by the Court of

Appeals in support of section 114 and its

confidentiality provisions support, if any-

thing, the facial legitimacy of the statute.

The reasons are immaterial to this case.

The Court of Appeals stated that confiden-

tiality serves several purposes:

It shields the adoptive child

from possibly disturbing facts

surrounding his or her birth

and parentage, it permits the

adoptive parents to develop a

close relationship with the

child free from interference

or distraction, and it provides

the natural parents with an

anonymity* that they may con-

sider vital. p. 4a

Thus, the Court of Appeals found as justifi-

cation for the statute, a) protection of the

adoptee, b) maintenance of close relation-

ship between adoptee and adoptive mother and

c) privacy of natural parents.

* The Court of Appeals relied on the case

of People ex rel qoarperta Vv. Spence-Chapin

Adoption Serv., ’ , cert.

den., 404 U.S. 805 (1971), as authority for

the notion that the natural parents should

have their anonymith preserved. That case,

however, relates only to withholding infor-

mation from the adopting parents, not from

the child.

Even if these interests are legitimate,

and may properly serve to frustrate the

wishes of an adoptee in some cases, they

hardly satisfy the burden necessary to out-

weigh appellant's right of access.

A. Protection of the Adoptee

The paternalistic desire to shield the

adoptee from possibly disturbing facts about

his or her birth is inappropriately applied

to appellant. Ironically, it is the ban on

information, rather. than access to any infor-

mation, which is adversely affecting appel-

lant. Moreover, because appellant is an

adult, the State has no legitimate interest

in protecting her in circumstances in which

she does not want protection. cf. O'Conner

v. Donaldson, 422 U.S. 563 (1975). Finally,

no evidence was presented to indicate that

the information contained in appellant's

birth records does include disturbing facts.

Indeed, there is no suggestion that the

courts below relied on this ground in deny-

ing access.

B. Maintenance of Close Relation

Between Adoptee and Adoptive

Parent

This justification is similarly inappli-

cable to appellant's case. Both appellant

and her only living adoptive parent want the

information contained in the birth records

to be revealed. The theoretical justifica-

tion for restricting access in a situation

in which the adoptive parents are vigorously

opposed to opening the records is immaterial

to the facts presented in this case. At the

hearing, appellant's mother testified that

she wanted appellant to have access to all

information concerning her birth. Thus, if

section 114 was enacted to protect the adop-

tive parents, appellant's mother has waived

any protection which the statute was designed

to afford her. The state has no legitimate

interest imposing upon appellant and her

mother a "protection" which neither wants and

both expressly rejected.

C. Privacy of Natural Parents

The only interest identified by the Court

of Appeals which conceivably could justify

barring appellant's access to her records is

the privacy interests of the birth parents.

Assuming, arguendo, that the privacy

rights of natural parents are sufficient to

sustain section 114 against a facial attack,

in this case, the wishes of the natural par-

ents are unknown. Appellant's right of

access was infringed because of a mere pos-~

sibility that the birth parents, if asked,

would not want appellant to know who they

are. The state has failed completely to

show a basis for depriving appellant of in-

formation which she so strongly wants or

needs.* Whatever theoretical interests the

state may have in keeping records secret,

the record is wholly devoid of any proof that

they justify restriction of information to

appellant. cf. Mills v. Atlantic City Dept.

of Vital Statistics, 148 N.J. Super. 302,

372 A.2d 646 (Ch. Div. 1977).

At the very least, appellant has put into

issue the justification for keeping the re-

cords secret to a sufficient degree that the

burden should have been shifted to the State

to indicate concretized, actual reasons for

* Under the Freedom of Information Act, 5

U.S.C. §552(b) (6), for example, records could

be withheld when disclosure “would constitute

a clearly unwarranted invasion of personal

privacy" (emphasis supplied). Under the

FOIA, the agency withholding access has the

burden of sustaining its action. Chamberlain

v. Alexander, 419 F. Supp. 235 (S.D. Ala.

6). As a result, access to adoption re-

cords could be denied only if the state were

able to establish, in each specific case,

that disclosure was clearly unwarranted be-

cause of the natural parents' adamant resis-~

tance to disclosure, combined with their

legitimate claim of a right to privacy and

anonymity.

depriving appellant access to her records.

In the absence of such reasons, the opera-

tion of section 114 to deprive appellant of

access renders the statute unconstitutional

as applied to the facts in this case.

CONCLUSION

For the reasons stated above, the Court

should note probable jurisdiction and set

this case for plenary briefing and argument.

Respectfully submitted,

MARTIN GUGGENHEIM

Suite 1501

80 Fifth Avenue

New York, New York 10011

(212) 924-3200

May, 1981

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

In the Matter of Linda F. M.,

Adopted as a Minor Under the Age

of 14 Years by Dr. Irwin M. and

Anne M. for leave to Gain Access

to the Sealed Adoption Records,

Appellant.

OPINION

COOKE, Ch. J.:

This appeal focuses on the circumstances

under which adopted persons can later dis-

cover the identity of their natural parents

by obtaining access to the sealed adoption

records. Section 114 of the Domestic Rela-

tions Law provides that such disclosure shall

be granted only for "good cause." For the

reasons that follow, the courts below were

correct in concluding that petitioner here

failed to meet this standard.

Petitioner was born on July 19, 1940,

and was adopted on March 4, 1941 pursuant to

an order of the Surrogate's Court of Bronx

County. She did not learn of her adoption

until 1971. In 1977, after attempting with-

out success to locate her natural parents by

other means, petitioner began this proceed-

ing to obtain access to her sealed adoption

records. She alleged various psychological

problems stemming from her ignorance of her

background. After a hearing, the Surrogate

found that petitioner had failed to estab-

lish good cause for unsealing the records.

The Appellate Division affirmed for the rea-

sons stated by the Surrogate.

Section 114 of the Domestic Relations

Law places great emphasis on the confidential

1 The section

nature of adoption records.

provides that they “shall be sealed and

secret." It prohibits anyone, including the

adoptive parents' attorney, from disclosing

the child's original surname to the adoptive

parents. It authorizes punishment for con-

tempt of court for certain breaches of con-

fidentiality occurring in the handling of

the records. The section permits access to

the records only by court order "on good

cause shown and on due notice to the adop-

1. Although the state's first statute au-

thorizing adoptions contained no provision

for the sealing of adoption records (L 1873,

ch 830), the Legislature in 1924 authorized

courts to seal such records in their dis-

cretion. Once sealed, a showing of good

cause was required for access (L 1924, ch

323). Since 1938, the sealing of such re-

cords has been mandatory, with access avail-

able only after a court determination of

good cause (L 1938, ch 606).

Today, only a relative handful of states

permit access by adopted children to adop-

tion records without some type of demon-

stration on need (see Note, the Adult

Adoptee's Constitutional Right to Know His

Origins, 48 So Cal L Rev 1195, 1199). The

Uniform Adoption Act contains a good cause

requirement similar to New York State's

statute (Uniform Adoption Act § 16, subd 2).

tive parents and to such additional persons

as the court may direct."

This confidentiality serves several

purposes. It shields the adopted child from

possibly disturbing facts surrounding his or

her birth and parentage, it permits the

adoptive parents to develop a close relation-

ship with the child free from interference

or distraction, and it provides the natural

parents with an anonymity that they may con-

sider vital (People ex rel. Scarpetta v.

Spence-Chapin Adoption Serv., 28 NY2d 185,

195, cert den, 404 US 805). The state's

interest in fostering an orderly and super-

vised system of adoptions is closely tied

to these interests of the parties involved

(Matter of Anonymous, 89 Misc 2d 132; 92

Misc 2d 224).

Although petitioner, now an adult, has

obtained the approval of her adoptive mother

for her attempt to gain access to the adop-

tion records and her adoptive father is de-

ceased, the natural parents retain a

potentially strong interest in maintaining

their anonymity. It thus is essential that

petitioner make a showing of good cause. A

na_ural parent understandably can feel deep

effects when the records of an adoption are

opened years after the child was surrendered

for adoption. Although the sudden reappear-

ance of the child may often be a source of

great pleasure to the natural parent, in

other cases it may be a destructive intru-

sion into the life that the parent has built

in the years since the adoption. It may be

the source of much discomfort. In some

cases, it may even open the way for the child

or others to blackmail the natural parent by

threatening to disclose embarrassing cir-

cumstances surrounding the birth.

Petitioner alleges that her inability to

discover the identity of her natural parents

has caused psychological problems that have

broken up a marriage and hampered develop-

ment of her artistic and musical creativity.

The courts below, however, found that any

problems she had encountered in these areas

were not credibly connected to her lack of

knowledge of her natural parents' identities.

To the extent that she was troubled by her

lack of knowledge, the courts found that

this sprang from mere general curiosity about

her parentage, rather than from a concrete

and compelling need. The record amply sup-

ports these findings.

Petitioner herself summarized her rea-

sons for wanting access to her records as a

desire "([t]o know who I am. I feel cut off

from the rest of humanity. I was given birth

to the same way as everyone else, but every-

one else can send away $3 and get a copy of

their birth certificate. I want to know who

I am. The only person in the world who

looks like me is my son. I have no ances-

try. Nothing." A desire to learn about

one's ancestry should not be belittled. When

balanced against the interests of other

parties to the adoption process, however, it

cannot alone constitute good cause under

section 114. This is not to say that con-

crete psychological problems, if found by

the court to be specifically connected to

the lack of knowledge about ancestry, would

never constitute good cause (see Matter of

Anonymous, 92 Misc 2d 224). By its very

nature, good cause admits of no universal,

black-letter definition. Whether it exists,

and the extent of disclosure that is appro-

priate,” must remain for the courts to de-

cide on the facts of each case. Neverthe-

less, mere desire to learn the identity of

one's natural parents cannot alone constitute

good cause, or the requirement of section 114

2. Where records are needed for a specific

health-related purpose, a court may wish to

consider permitting disclosure of relevant

medical data in the records without reveal-

ing other material such as the identities of

the natural parents (see, e.g., Matter of

Chattman [Bennett], 57 AD2d 618).

would become a nullity. Petitioner, there-

fore, has failed to meet the statutory pre-

requisite to gaining access to her records.

This appeal also raises the issue of

whether notice of such a proceeding should

also be given to the natural parents. Al-

though the notice provision of section 114

specifically mentions only the adoptive par-

3 the interests of the natural parents

ents,

dictate that notification be given if the

court finds that the petitioner has made a

showing of entitlement and provided that the

natural parents can be located with reason-

able effort and in a manner that will not be

likely to be self-defeating by revealing

their identities tc the adoptive parents or

others. Such notice provides the natural

3. Section 114 of the Domestic Relations

Law provides in pertinent part: "No order

for disclosure or access and inspection shall

be granted except on good cause shown and on

due notice to the adoptive parents and to

such additional persons as the court may

direct."

parents with an opportunity to intervene

through a representative in the proceeding

and defend their interests in retaining anony-

mity (cf Matter cf Anonymous, 89 Misc 2d 132;

92 Misc 2d 224, supra). Because this in-

terest may not receive full articulation in

their absence, it is important that those

who may be vitally affected by disclosure

be given a chance, if practical, to inter-

vene. It is possible, of course, that such

notice to the natural parents would not be

practical. Such was the case in this pro-

ceeding, in which the Surrogate found on the

record that it would be all but impossible

to locate the natural parents by reasonable

efforts and that other means of protecting

their interests would suffice. ‘The Surro-

gate's decision to forego notice in this

case was therefore proper. Corresponding

care must also be taken to protect the

privacy interests of the adoptive parents.

10a

Finally, petitioner's claim that section

114 is unconstitutional is rejected (see

Alma Soc. v Mellon, 601 F2d 1225, cert den,

444 US 995).

Accordingly, the order of the Appellate

Division should be affirmed, with costs.

Order affirmed, with costs. Opinion by

Cooke, Ch. J. All concur.

Decided February 24, 1981

APPENDIX B

At a term of the Appellate

Division of the Supreme Court

held in and for the First

Judicial Department in the

County of New York, on

November 29, 1979

Present-Hon. Harold Birns, Justice Presiding

Arnold L. Fein

Joseph P. Sullivan

Arthur Markewich .

J. Robert Lynch Justices

In the Matter of the application of

Linda F’. M.,

adopted as a minor under the age

of 14 years by Dr. Irwin M. and

Anne M. for leave to gain access

to the sealed adoption records,

6746

Petitioner-Appellant.

An appeal having been taken to this

Court by the petitioner-appellant from an

order of the Surrogate's- Court, Bronx

County (Gelfand, S.), entered on March 23,

1979 denying appellant's petition to gain

access to her sealed adoption record, and

said appeal having been signed by Mr. Martin

Guggenheim of counsel for the appellant, and

by Mr. Charles Brody of counsel for the

respondent Attorney-General; and due deli-

beration having been had thereon,

It is unanimously ordered that the

_ order so appealed from be and the same is

hereby affirmed for the reasons stated by

Gelfand, S., without costs and without

disbursements.

ENTER: JOSEPH J. LUCCHI

Clerk

APPENDIX C

In the Matter of LINDA F. M., Petitioner.

Surrogate's Court, Bronx County, January 17, 1978

OPINION OF THE COURT

BERTRAM R. GELFAND, S.

This is a proceeding pursuant to section

114 of the Domestic Relations Law, commenced

by an adult adoptee for leave to gain access

to the sealed records respecting her adop-

tion on good cause shown. The petitioner's

adoptive father is deceased. The adoptive

mother joins in this application. The court

had directed upon the filing of the petition

herein that notice of the application be

given to the Attorney-General in view of the

issues raised as to the constitutionality of

section 114 of the Domestic Relations Law.

Notice was also given to the Commissioner of

Health who has custody of the original birth

record that had been sealed by virtue of the

order of adoption dated March 4, 1941.

At the initial hearing on this mat-

ter an issue had been raised as to the rights

of the natural parents of the petitioner to

participate in this proceeding. The Attor-

ney~General has taken the position that the

natural parents are necessary parties in this

proceeding; that a guardian ad litem should

be appointed to represent them and, if pos-

sible, to find them and apprise them of their

rights. (See Matter of Anonymous, 89 Misc

2d 132.)

The pertinent portion of section 114 of

the Domestic Relations Law states that: "No

person shall be allowed access to such sealed

records and order and any index thereof ex-

cept upon an order of a judge or surrogate

of the court in which the order was made or

of a justice of the supreme court. No order

for disclosure or access and inspection shall

be granted except on good cause shown and on

such additional persons as the court may

direct." (Emphasis added.)

The provisions in the law for sealing

adoption records were enacted in 1924 when

the court was given the discretion to seal

all of the records except the order. The

order was filed and recorded in the county

clerk's office (L 1924, ch 323). In 1938

the sealing of all records was made mandatory

and the procedure for access to the records

was enacted. Initially, the only notice on

an application to unseal the file that was

required was that to be given to the adop-

tive parents. By chapter 1038 of the Laws

of 1968 the procedures with reference to the

processing of applications for agency adop-

tions (as distinguished from the private

placement adoptions) had been drastically

changed to provide for the withholding from

the adoptive parents of certain personal

information respecting the adoptive child,

e.g., surname of the child. In this same

chapter 1038, section 114 was amended to

give the court discretion to serve notice

of the application for access to the adop-

tion records "to such additional persons as

the court may direct." From the history of

section 114 of the Domestic Relations Law,

it is clear that the only mandated necessary

parties to an application to open the re-

cords are the adoptive parents. The surviv-

ing adoptive parent here has joined in this

application. The involvement of other per-

sons in the proceeding is within the sound

discretion of the court. They may be brought

in by notice given to them in such form and

such manner as the court may direct (SCPA

313).

It is contended by petitioner that

as a matter of law the court lack jurisdic-

tion to direct notice of this proceeding to

the natural parents. Petitioner argues that

since the statute in existence at the time

of the adoption in 1941 contained no provi-

sion for notice to "such additional persons

as the court may direct" the natural parents

had no possible right to notice when they

surrendered the child for adoption and

accordingly cannot now have any greater

rights than they had at the time of the

adoption. The validity of this argument is

dependent upon whether the 1968 amendment

was procedural or substantive. It is con-

cluded that the 1968 amendment allowed the

court to require notice to such additional

parties as it may direct as it relates to

natural parents is no more than a codifica-

tion of a procedure for protecting the exist-

ing equitable posture of natural parents.

Proceedings are governed by the statutes in

existence at the time of the proceeding

(Matter of Clayton v Clement, 33 NY2d 386,

390; Lazarus v Metropolitan El. Ry. Co., 145

NY 581, 585; Mobil Oil Indonesia v. Asamera

Oil [Indonesia], 56 AD2d 339; McKinney's

Cons Laws of NY, Book 1, Statutes, §55). It

is accordingly concluded that, upon this

application, as a matter of law, the court

has the discretion to direct notice "to such

additional persons" as it may deem advisable.

There is no doubt that a natural par-

ent is a person whose rights can be pro-

foundly affected by the unsealing of a re-

cord of a long-completed adoption. The

sudden appearance of a long-surrendered

child can be an event either joyfully

greeted by a natural parent or a shattering

trauma totally destructive of the life the

parent may have established in the interven-

ing years since giving up the child for

adoption. The right to privacy and anonymity

of a surrendering parent is an adoption can-

not be totally disregarded, if natural par-

ents wishing to surrender their children for

adoption are to be encouraged to do so

through legitimate sources. Accordingly, it

must be recognized that, if possible, upon

an application to unseal adoption records,

since a natural parent's rights may be af-

fected, ideally the views of such parents

should be considered in the proceeding.

However, in deciding whether a natural

parent should become a party to the proceed-

ings the bounds of feasibility and practi-

cality cannot be ignored. Where it appears

from the record that the natural parents or

parent can be readily located, the novel

procedure outlined by my respected colleague,

Surrogate LAURINO, in Matter of Anonymous

(89 Misc 2d 132, supra), presents a prac-

tical procedure for considering the rights

of the natural parents without disclosing

their identity. However, where the infor-

mation in the file, as in the instant case,

reflects that the whereabouts of the natural

parent, as well as even her true identity,

could not be readily ascertained, if at all,

without an extensive search, the requirement

of notice ot such person and the appointment

of a guardian ad litem in their behalf would

serve no purpose. It would burden the pro-

ceeding with the additional expense of a

guardian ad litem who is not likely to be in

a position to significantly contribute to a

determination of the proceeding.

Another pragmatic impact of appointing

a guardian ad litem in every case even where

it is not likely the natural parent can be

located, would be to impose upon the court

in every application to unseal an adoption

file, the burden of locatince a long absent

natural parent, even before there has been

even a prima facie showing as to the exist-

ence of good cause to unseal the adoption

file. It is noted that the presence of the

Attorney-General in the proceeding provides

a litigant who is taking a position opposite

to petitioner so that ali proof is subject

to examination in an adversary atmosphere.

Accordingly, on the facts in the instant

case, in the exercise of discretion, it is

determined that the issues may proceed to

trial without notice to the natural parents

or the appointment of a guardian ad litem on

their behalf.

The matter is set down for a hearing on

the issue of good cause to be held on

February 15, 1978 at 9:30 A.M. Notice of

hearing is to be served on all parties on or

before February 3, 1978.

APPENDIX D

In the Matter of LINDA F. M., Petitioner.

Surrogate's Court, Bronx County, October 26, 1978

OPINION OF THE COURT

BERTRAM R. GELFAND, S.

Upon this application petitioner seeks

access to both the records of her adoption

and to the sealed board of health records

relative to her birth. Petitioner pursues

a three-pronged attack incorporating a

multitude of arguments in support of the

relief being sought. Initially she contends

that the provisions of section 114 of the

Domestic Relations Law pertaining to the

sealing, unsealing and confidentiality of

adoption records are not applicable to her.

As a first alternative she contends that if

the statute does apply to her, the proof

adduced at the hearing with reference to

good cause existing sustains granting the

application pursuant to statute. The final

basis presented for relief is a contention

that in any event, the statute sealing

adoption and original birth records of

adoptees is offensive to the provisions of

United States and New York State Constitu-

tions and should be declared null and void.

The adoption of petitioner was concluded

by the entry of an order on March 14, 1941.

Petitioner's adoptive mother joins in the

application. Her adoptive father is de-

ceased. Upon the facts then apparent, the

request made by petitioner, upon initiation

of this proceeding, that her natural parents

should not be made parties and that a guard-

ian ad litem should not be appointed for

them, was granted (see Matter of Linda F. M.,

92 Misc 2d 828).

The constitutionality of the statute is

an issue which should be addressed only if

the relief sought cannot otherwise be ob-

tained (Broadrick v Oklahoma, 413 US 601;

United States v Raines, 362 US 17; People v

Heller, 33 NY2d 314; People v Epton, 19 NY2d

496). Accordingly, the cther basis for re-

lief presented by petitioner will be first

considered.

It is appropriate to intially address

petitioner's contention that the statute

governing the sealing of adoption records is

inapplicable to her. In support of this

position she alleges that this statute ap-

plies only to agency adoptions and not to

private placement proceedings, such as the

one in which she was adopted. The pertinent

portion of section 114 of the Domestic Rela-

tions Law provides that with reference to

sealed adoption records "No order for dis-

closure or access and inspection shall be

granted except on good cause shown." Peti-

tioner's position that this explicit langu-

age is not applicable to her case is based

upon the fact that the quoted language is in

a section of the Domestic Relations Law

which is part® of title 2 of article 7.

Title 2 is entitled "Adoptions from an

Authorized agency.”

The pertinent provisions of the title of

the Domestic Relations Law governing private

placement adoptions indicate in explicit

language the total lack of validity of this

argument. Title 3 of article 7 of the

Domestic Relations Law bears the specific

heading "Private-placement adoptions." Sub-

division 4 of section 116 of the Domestic

Relations Law is part of title 3. That sub-

division states that if the court having

jurisdiction over the adoption is satisfied

that it should be granted, "the provisions

of section one hundred fourteen of title two

of this article shall apply." Accordingly,

the provisions for the sealing of adoption

records set forth in section 114 are by

reference equally applicable to both private

placement and agency adoptions.

It is further argued by petitioner that

the statute governing the sealing of adoption

records should be construed as not being

applicable to a record where the adoptee has

become an adult. The possibility of such a

construction rests totally upon the language

of the statute.

In addressing this issue, sensitivity

must be shown to the well-established prin-

ciple that separation of powers dictates

that courts be limited in construing a

statute to determining the intent of the

Legislature in those situations where the

language of the statute is either subject

to more than one interpretation or is other-

wise unclear. (Bright Homes v Wright, 8

NY2d 157, 161-162; Sexauer & Lemke v Burke &

Sons Co., 228 NY 341; McKinney's Cons Laws

of NY, Book 1, Statutes, §76.)

The discharge of this function does not

confer upon the judicial branch of govern-

ment the power, under the guise of construc-

tion, to legislate by amending, modifying,

extending, or otherwise creating a statutory

provision alien to the clear language of that

which has heen enacted by the Legislature and

signed by the Governor (Matter of Anonymous

[St Christopher's Home], 40 NY2d 96, 102;

Matter of Malpica-Orsini, 36 NY2d 568, 571,

app dsmd 423 US 1042; Bright Homes v Wright,

8 NY2d 157, supra; Allen v Minskoff, 38

NY2d 506; Lawrence Constr. Corp. v State of

New York, 293 NY 634, 639; Sexauer & Lemke

v Burke & Sons Co., 228 NY 341, supra).

On this subject, Judge CARDOZO, speaking

for a unanimous Court of Appeals cautioned

that: “Freedom to construe is not freedom to

amend." (Sexauer & Lemke v Burke & Sons Co.,

228 NY 341, 345, supra.)

Chief Judge LEHMAN writing for a major-

ity of six Judges wrote at page 639 in

Lawrence Constr. Corp. v State of New York

(supra): "A statute must be read and given

effect as it is written by the Legislature,

not as the court may think it should or

had envisaged all the problems and complica-

tions which might arise in the course of its

administration."

More recently Judge FOSTER writing for a

unanimous Court of Appeals strongly restated

the applicable admonition in the much cited

case of Bright Homes v Wright (8 NY2d 157,

162, supra) in the following language:

"Courts are not supposed to legislate under

the guise of interpretation, and in the long

run it is better to adhere closely to this

principle and leave it to the Legislature to

correct evils if any exist."

Petitioner cites no statutory language

limiting the period in which an adoption

record remains sealed, nor can the court

discern any express or implied intent in the

statutes which would support the construction

sought by petitioner. A reading of all of

the sections of the Domestic Relations Law

applicable to both agency and private place-

ment adoptions does not disclose any possible

basis for concluding that between the lines

of the explicit language constituting the

statute governing the sealing of adoption

records, there exists an unexpressed intent

on the part of the Legislature that the pro-

visions with reference to such sealing of

adoption records are not applicable to

adoptees who have reached their majority.

In interpreting adoption legislation, it

must be further remembered that adoptions

were unknown to the common law. Adoption is

a procedure that exists only by dint of

statutory enactment (Matter of Malpica-

Orsini, 36 NY2d 568, 570, supra; Betz v Horr,

276 NY 83, 86-87; Carpenter v Buffalo Gen.

Elec. Co., 213 NY 101, 104; Matter of MacRae,

189 NY 142, 143; Matter of Thorne, 155 NY

140, 143; Caruso v Caruso, 175 Misc 290).

Since adoption statutes are in derogation of

the common law, they must be strictly con-

strued ("Doe" v "Roe", 37 AD2d 433, 436;

Caruso v Caruso, Gupra; Matter of Santacose,

271 App Div ll, 16; Matter of "Wood" v

"Howe", 15 Misc 2d 1048, 1050).

It is accordingly concluded that the

statutes whose construction have been placed

in issue by petitioner provide that all re-

cords of adoptions are sealed forever unless

opened by an order of a court of appropriate

jurisdiction upon the establishment by a

petitioner of good cause. The applicable

statutes make no distinction between a re-

cord of a private placement or an agency

adoption, nor do they differentiate between

a record where the adoptee is now an adult,

or one in which the adoptee is still an

infant.

It having been concluded that the sta-

tute requires a showing of good cause before

the records at issue can be unsealed, it is

necessary to review the proof offered by

petitioner to establish good cause. Peti-

tioner, to succeed on this issue, must show

a present need to view the sealed records

(Matter of Chattman, 57 AD2d 618; Matter of

10d

Anonymous, 89 Misc 2d 132). This need must

rise above mere desire or curiosity. A pre-

sent need sufficient to sustain good cause

has been found when the evidence has shown

that access was necessary for a current

medical or genetic reason (Matter of Chatt-

man, supra) or for a present psychological

problem (Matter of "Anonymous", 92 Misc 2d

224; Matter of Maxtone-Graham, 90 Misc 2d

107). In each of these cases a causal con-

nection was established between the medical

support for the application and a present

need of the petitioner.

The record indicates that petitioner is

now approximately 37 years of age. The order

of adoption was entered when she was approxi-

mately eight months old. Petitioner first

learned of her adoptive status in 1971 when

her adoptive father was seriously ill.

Petitioner testified that she was first

married in 1960. She presently resides with

her 17-year old son who was the sole issue

lld

of that marriage and is petitioner's only

child. This marriage was terminated by

divorce in December, 1961. Petitioner

entered into a second marriage in November,

1971, which was annulled in September, 1974.

It was further testified by petitioner

that she graduated from college in 1963.

She devoted the period from 1963 to 1970

exclusively to the care of her son. There-

after she began working in the field of

typesetting. She is presently employed by a

firm doing related work.

It is argued by petitioner that the know-

ledge of her adoptive status without the full

knowledge of the identity of her natural

parents has caused her psychological problems

which impaired her artistic skills. In sup-

port of this argument, petitioner stated that

she had "cut" a musical record in 1964, the

success of which was not clarified. She has

also indicated that she wrote poetry in

college, but was not inspired in this direc-

12d

tion again until 1973.

It is also contended by petitioner that

good cause exists because of petitioner's

concern that she might enter into a incest-

uous marriage unless she is able to learn

the identity of her natural parents. A

further ground for the existence of good

cause was that she wished to establish the

faith of her natural mother. Petitioner

also testified that she had consulted a

psychiatrist. However, these consultations

were not related to her adoptive status.

They consisted of discussions concerning her

relationship with the father of her son.

At the hearing testimony was adduced

from a psychologist, and from a psychiatrist

whose specialty is human genetics. Neither

of these witnesses ever treated petitioner.

The psychologist was primarily involved with

a research project involving adoptees as one

phase of an inquiry called "People at Risk."

The other groups involved in addition to

13d

adoptees were prisoners and diabetics. This

witness had interviewed petitioner during

three one-hour sessions over a one-year

period and had administered tests in connec-

tion with a control group of 300 adoptees he

had under study. Petitioner's test results

placed her in the middle of the test scale.

These results indicated nothing unusual

about petitioner as an adoptee as against a

nonadoptee.

The expert testimony of the psychiatrist

was limited to indicating that genetic his-

tory is useful in the diagnosis of certain

ailments. However, neither petitioner nor

her son is undergoing, or has in the past

undergone, any medical treatment or examina-

tion for which genetic data was needed. The

testimony on genetics was in no way related

to petitioner or her son, nor was it causally

connected to the issue on trial.

The evidence as to petitioner's il ge

history and lack of artistic achievement for

144

a period of years was not even remotely con-

nected to any need to view the records that

are presently sealed. The attempt to relate

the lack of success of her second marriage

to a younger man of a different faith to

her 1971 discovery of her adoptive status is

not supported by the credible proof. The

hiatus in petitioner's artistic efforts

began long before petitioner knew she was

adopted and her present renewed interest be-

gan long after she learned she was an adop-

tee. The proof on this subject did not in

any way relate her nonproductivity in artis-

tic areas to her adoptive status or to her

learning of this status. The record is also

devoid of any evidence which would support a

conclusion that petitioner, or her son, har-

bored any religious belief which would sus-

tain a need to unseal the records at issue.

The evidence adduced fails to even sug-

gest, let alone sustain, any conclusion

other than that the motivating cause fcr the

15d

application is petitioner's curiosity. To

conclude that mere curiosity as to one's

natural forebears constitutes good cause

within the framework of section 114 of the

Domestic Relations Law would render the

clear import of the statute meaningless.

Every application to unseal adoption records

would have to be perfunctorily granted. This

would be a result whereby judicial fiat the

clear provisions of the statute would be

routinely ignored. Such a course would be

no less than blatant judicial intrusion into

the legislative process. It is accordingly

concluded that petitioner has failed to

establish a statutory right to relief.

There remains petitioner's challenge to

the constitutionality of the statute that

bars her access to the records she seeks to

examine. Petitioner argues that section 114

of the Domestic Relations Law unconstitu-

tionally deprives her of a fundamental right

to her “personality”, "privacy", and "to

16d

receive information about her origin", all

of which rights are allegelly "protected by

the due process and equal protection clauses,

as well as by the Thirteenth Amendment." It

appears that intrinsically this argument

rests upon the statute precluding her from

access to information as to her birth which

a nonadoptee could obtain, and a conclusion

that this legislatively created limitation

has no legitimate basis.

A court in assessing a constitutional

attack upon a statute must be sensitive to

certain basic principles. It must be remem-

bered that a strong presumption of constitu-

tionality attaches to all legislation

(Wasmuth v Allen, 14 NY2d 391, 397; Defiance

Milk Prods. Co. v_ Du Mond, 309 NY 537; Matter

of Cullum v O'Mara, 43 AD2d 140, 145). From

this presumption flows a further presumption

that the Legislature, in enacting a statute,

has investigated and found the facts neces-

sary to support a need for the legislation

174

(I.L.F.¥. Co. v Temporary State Housing Rent

Comm., 19 NY2d 263, 269; Lincoln Bldg. Assoc.

v Barr, 1 NY2d 413; Matter of Cullum v O'Mara,

Supra; East N.Y. Sav. Bank v Hahn, 293 NY

622, affd 326 US 230). Relatively recent

holdings of our highest court have indicated

that a party seeking to declare a statute

unconstitutional must demonstrate its invali-

dity beyond a reasonable doubt (People v

Pagnotta, 25 NY2d 333, 337; Matter of Van

Berkel v Power, 16 NY2d 37, 40).

It is not disputed that the development

of a procedure which will promote, encour-

age and facilitate the adoption of children

is a legitimate area of State concern. ASs

in other areas of responsibility exercised

by a sovereign State, it is recognized that

the proper discharge of these responsibili-

ties involves, of necessity, the enactment

of statutes which submerge individual rights

to the common good resulting in some restric-

tion on the unfettered liberty of indivi-

18d

duals or institutions to proceed as they

may wish in every situation. The State is

given this authority under the police powers

so that it may discharge its responsibilities

as sovereign. These powers give broad dis-

cretion to the Legislature in selecting the

most appropriate course for promotion and

protecting the health, welfare and safety of

the people of the State. The extensive na-

ture of the State's police power was de-

scribed by the United States Supreme Court

as follows in Atlantic Coast Line v. Golds-

boro (232 US 548, 558): "For it is settled

that neither the 'contract' clause nor the

‘due process' clause has the effect of over-

riding the power of the State to establish

all regulations that are reasonably necessary

to secure the health, safety, good order,

comfort, or general welfare of the community;

that this power can neither be abdicated

nor bargained away, and is inalienable even

by express grant; and that all contract and

194

property rights are held subject to its

fair exercise." Its scope was more recently

summarized by the Court of Appeals as

follows: "At the outset it must be empha-

sized that '(t)he police power of the State

is the least limitable of all the powers of

government' (Matter of Engelsher v Jacobs, 5

N Y 2d 370, 373, cert. den. 360 U.S. 902) and

we have sustained its application to the con-

versation of fish and wildlife (Barrett v

State of New York, 220 N.Y. 423, supra) and

other areas of beauty and esthetics (New York

State Thruway Auth. v Ashley Motor Ct., 10

N Y 2d 151; People v Stover, 12 N Y 2d 462,

app. dsmd. 375 U.S. 42 [for want of substan-

tial Federal question)). In Barrett (supra,

at p. 428) we said: "The police power is

not to be limited to guarding merely the

physical or material interests of the citi-

zen. His moral, intellectual and spiritual

needs may also be considered.'" (Nettleton

Co. v Diamond, 27 NY2d 182, 192-193.)

20d

The holding of the Court of Appeals in

Nettleton Co. v Diamond (supra) specifically

states that the police power extends to pro-

moting the moral, intellectual, and spiri-

tual needs of its people. It must be con-

cluded that a statutory scheme to encourage

and facilitate the adoption of children cer-

tainly involves the moral needs and welfare

of the State's citizens, as well as the

physical welfare of the children involved.

Accordingly, it is concluded that adoption

is an area subject to the State's exercise

of its police power.

It cannot be concluded that the Con-

stitution envisaged rights such a "person-

ality” or an unfettered right to receive

any information one might desire. Peti-

tioner has neither shown a valid basis for

concluding from either the United States or

New York Constitutions that such rights

exist or if they do exist how they are vio-

lated by the statute at issue exceeding the

21d

legitimate exercise by the State of its

police powers. No right to privacy of this

petitioner is conceivably at issue. If any

person's privacy is involved, it is the

possible right to privacy of the natural

parents.

The statute does create a differential

between the ability of an adoptee to obtain

original birth records as against a non-

adoptee. Implicit in this distinction is

the creation of two classifications of citi-

zens. Careful consideration has been given

as to whether this :.s offensive to the con-

stitutional guarantee to all our citizens

of equal protection under the law.

Petitioner asks that in determining

constitutionality that the more exacting

"strict scrutiny" test be applied to the

statute rather than the less demanding cri-

teria of ascertaining if a rational basis

exists for its provisions. Under the cri-

teria petitioner wishes applied, it would be

22d

the duty of the court to determine if, to

the extent adoption records and adoptees

birth records are sealed, the Legislature

has enacted limitations which have been

drawn with sufficient narrowness so as to

limit individuals to the minimum extent that

is required to effectuate a legitimate State

interest (Roe v Wade, 410 US 113, 155;

Kramer v Union School Dist., 395 US 621, 627;

Shapiro v Thompson, 394 US 618; Griswold v

Connecticut, 381 US 479, 485; Aptheker v

Secretary of State, 378 US 500, 508).

The "strict scrutiny" test is applicable

only in limited circumstances. It is to be

applied “only when the classification imper-

missibly interferes with the exercise of a

fundamental right or operates to the peculiar

disadvantage to s suspect class." (Massachu-

setts Bd. of Retirement v Murgia, 427 US 307,

312, emphasis added; see, also, San Antonio

School Dist. v Rodriquez, 411 US l, 16.)

23d

The characteristics of a suspect class

are set forth by the United States Supreme

Court in Massachusetts Bd. of Retirement v

Murgia (427 JS 307, 313, supra): "Rodriquez,

supra, [411 US] at 28, observed that a sus-

pect class is one ‘saddled with such dis-

abilities, or subjected to such a history of

purposeful unequal treatment, or relegated

to such a position of political powerlessness

as to command extraordinary protection from

the majoritarian political process.'" It

cannot conceivably be concluded that in the

enactment of section 114 of the Domestic

Relations Law, the Legislature sought to

place adoptees in a suspect class to their

peculiar disadvantage (Mathews v Lucas, 427

US 495). It is noted that in Mathews v

Lucas (supra) the United States Supreme Court

held illegitimates not to constitute a sus-

pect class. It is impossible to conceive

that adoptees constitute a suspect class.

24d

There remains the question as to whether

a "fundamental right" of petitioner is here

involved. Every restriction on individual

desires or actions does not involve what the

law has delineated as a "fundamental right."

The boundaries of such rights are relatively

clear. For the petitioner to be deemed to

have a "fundamental right" to learn the names

of her natural parents without meeting the

statutory requirement to show good cause,

the right to such relief must be either im-

plicit in the concept of ordered liberty or

explicitly or implicitly granted by the

Constitution (San Antonio School Dist. v

Rodriquez, 411 US 1, 33-34, supra; Roe v

Wade, 410 US 113, 152, Supra; Palko v

Connecticut, 302 US 319, 325). Certain

matters relating to the "family" have been

determined to be fundamental rights. These

include, inter alia, procreation, marriage

and divorce (Roe v Wade, supra; Eisenstadt

v Baird, 405 US 438; Griswold v Connecticut,

25d

381 US 371). On the other hand, other cases

have held that classifications affecting the

"family" or based upon legitimacy are not

subject to the "strict scrutiny" test based

upon the abridgment of a fundamental right

(Mathews v Lucas, 427 US 495, supra; Labine

v Vincent, 401 US 532; Dandridge v Williams,

397 US 471).

Neither within the Constitution of the

United States and the State of New York, nor

in the multitude of cases concerned with

their provisions, can any explicit or impli-

cit constitutional guarantee be discerned

which would guarantee to petitioner the

right to view the records at issue. The

court is both understanding and sympathetic

to petitioner's curiosity about her fore-

bears. It is an interest shared with legions

of her fellow citizens who, to widely dif-

fering degrees, dependent on a multitude of

varying circumstances, are capable or in-

capable of satisfying their interest in their

26d

genealogy. However, it cannot be concluded

that obtaining the information at issue goes

to the ability of petitioner to enjoy the

fundamental liberties required to freely

pursue any activity basic to a full life.

Countless citizens drink of the cup of

liberty to the fullest extent without any

information as to their forebears. It is

noted that to the extent one has a peculiar

need for genealogical information, the New

York statute has made provisions. The re-

quesit of petitioner for application of the

"strict scrutiny" test must be denied as

inapplicable and the issues determined by

the “rational basis" test. This finding as

to the appropriate standard applicable to

the issues is not intended to imply that if

it were necessary to use any other standard,

a conclusion has been reached that a differ-

ent result would be required on the issue of

constitutionality.

27d

The United States Supreme Court in

Lindsley v Natural Carbonic Gas Co. (220 US

61, 78-79) used the following language to

explicitly set forth the appropriate tests

to be here applied in determining if a

statute which creates classifications is

offensive to the constitutionally guaran-

teed right to equal protection: "The rules

by which this contention must be tested, as

is shown by repeated decisions of this court,

are these: 1. The equal protection clause

of the Fourteenth Amendment does not take

from the State the power to classify in the

adoption of police laws, but admits of the

exercise of a wide scope of discretion in

that regard, and avoids what is done only

when it is without any reasonable basis and

therefore is purely arbitrary. 2. A classi-

fication having some reasonable basis does

not offend against that clause merely be-

cause it is not made with mathematical nicety

or because in practice it results in some

28d

inequality. 3. When the classification in

such a law is called in question, if any

state of facts reasonably can be conceived

that would sustain it, the existence of

that state of facts at the time the law was

enacted must be assumed. 4. One who assails

the classification in such a law must carry

the burden of showing that it does not rest

upon any reasonable basis, but is essenti-

ally arbitrary. Bachtel v Wilson, 204 U.S.

36, 41; Louisville & Nashville R.R. Co. v.

Melton, 218 U.S. 36; Ozan Lumber Co. v.

Union County Bank, 207 U.S. 251, 256; Munn

v. Illinois, 94 U.S. 113, 132; Henderson

Bridge Co. v. Henderson City, 173 U.S. 592,

615." (See, also, Massachusetts Bd. of

Retirement v. Murgia, 427 US 307, 313, supra;

Usery v Turner Elkhorn Mining Co., 428 US

1; Eisenstadt v Baird, 405 US 438, supra;

MacDonald v Board of Election, 394 US 802,

809; Barrett v Indiana, 229 US 26.)

29d

The Court of Appeals in Matter of Dorn

"HH" v Lawrence "II" (31 NY2d 154, 158)

stated the governing principle as follows:

"It is fundamental, of course, that the

Legislature may classify persons for pur-

poses of legislation without infringement

of the equal protection guarantee and that

its discretion in this regard is broad and

will not be disturbed if any state of facts

can reasonably be conceived to sustain its

Classification (Matter of 436 W. 34th St.

Corp. v McGoldrick, 288 N.Y. 346, 350, mot.

for rearg. den. 289 N.Y. 673; Shielcrawt v.

Moffett, 49 N.Y.S.2d 64, 76, affd. 268 App.

Div. 352, revd. on other grounds 294 N.Y.

180, mot. for rearg. den. 294 N.Y. 840; New

York R.T. Corp. v. City of New York, 303

U.S. 573) or even if the classification be

fairly debatable (Matter of Presnell v.

Leslie, 3 N Y 2d 384, 390, mot. for rearg.

den. 4 N Y 2d 1046), provided only it shall

not be palpably arbitrary (New York ex rel.

30d

Bryant v. Zimmerman, 278 U.S. 63)."

The enactment of article 7 of the

Domestic Relations Law reflects a clear

legislative recognition of the necessity for

a statutory procedure which would promote

the welfare of infants by the establishment

of a legal parent-child relationship where

one does not naturally exist. The encourage-

ment of the adoption of children is indis-

putably a legitimate legislative goal.

Petitioner has not sustained her burden to

show that a state of facts cannot reasonably

justify the need for confidentiality of

adoption records, except where good cause is

shown. In the absence of such showing it

cannot be concluded that the statutory pro-

visions are arbitrary. Pertinent to this

conclusion is the fact that the sealing of

these records does not involve information

relative to the petitioner alone, but also

involves the right of privacy of the natural

parents, wherever they may now be. It is

31d

noted in this case that the age information

on the birth certificate supports a conclu-

sion that both the natural mother and father

could presently be alive. Although the in-

formation suggests that locating them would

be a far from simple task, it is within the

realm of possibility, given a sufficient

effort. Accordingly, it is determined that

petitioner has not sustained her burden to

establish that the view of the Legislature

on the subject of confidentiality, as is

reflected in the statute, has no rational

basis.

Counsel for petitioner notes that some

States other than New York do allow adult

adoptees open access to their adoption

records. This circumstance cannot affect

the legal questions before this court. That

some States do allow adult adoptees access

to adoption records is no more relevant to

the issues before the court than the fact

that most States have statutes closer to the

32d

present New York law. Each State is sover-

eign. It is neither appropriate nor proper

for the court to determine which legislative

view is wiser.

On the constitutional questions before

this court, it is concluded that petitioner

has not established the constitutional in-

validity of the statutory provisions she

placed at issue. The question of whether

New York should adopt the position of some

of her sister States in unsealing by statute

the records of adult adoptees is a subject

for legislative, not judicial determination.

It is a change that cannot be successfully

accomplished by constitutional attacks on

the present statute, or a search for strained

and impossible constructions of existing law.

The application is in all respects de-

nied and the petition dismissed.

33d

At a term of the Surrogate's

Court, Bronx County, 850

Grand Concourse, Bronx, New

York, on the 23rd day of

March, 1979.

PRESENT:

HON. BERTRAM R. GELFAND,

Surrogate.

In the Matter of the Application of

LINDA FREYA MASON

adopted as a minor under the age of

14 years by Dr. Irwin Mason and Anne

Mason for leave to gain access to

the sealed adoption records.

DECREE

An application having been made for

access to and inspection of the adoption

records of the Surrogate's Court, and the

Department of Health, with reference to

LINDA FREYA MASON, who was adopted pursuant

to an order of this Court entered March 4,

1941 by Dr. IRWIN MASON and ANNE MASON;

34d

AND upon the petition of LINDA FREYA

MASON duly verified on May 24, 1977, re-

questing access to an inspection of all the

above mentioned records pertaining to peti-

tioner's adoption, to which she alleged she

was entitled as an adult as well as under

Domestic Relations Law, Section 114, for

good cause shown or in the alternative as a

matter of constitutional right; and upon

submitting exhibits supporting said petition,

and petitioner's knowledge of information

identifying her natural mother by name and

address;

AND an Order to Show Cause having been

granted by this Court on June 3, 1977, re-

turnable on September 21, 1977 directing

the Department of Health of the City of New

York, the custodian of petitioner's birth

records and the Attorney General of the

State of New York in view of the issues

raised as to the constitutionality of DRL

§114 to show cause why the records relative

35d

to the adoption of LINDA FREYA MASON should

not be opened for access and inspection by

the petitioner; why the records of birth of

the New York City Department of Health re-

lative to petitioner should not be opened

for disclosure and inspection by petitioner

and, should the relief not be granted on

other grounds, why Section 114 of the

Domestic Relations Law should not be de-

clared unconstitutional; and an answer hav-

ing been filed by the respondents, Depart-

ment of Health of the City of New York, by

the Corporation Counsel together with an

affirmation by Beryl Kuder, of counsel,

dated August 19, 1977, and by the Attorney

General of the State of New York by Charles

Brody, of counsel, dated July 6, 1977, both

requesting a hearing on the issue of whether

petitioner had good cause to obtain access

to her records pursuant to DRL §114, denying

petitioner's standing to raise the issue of

the constitutionality of the statute chal-

36d

lenged unless her application for lack of

good cause has been denied and requesting

dismissal of the petition concerning the

challenge to the constitutionality of the

statute;

AND thereafter the application having

come on to be heard on September 28, 1977

and petitioner having appeared in person and

by Herzfeld & Rubin, P.C. by Gertrud Mainzer,

of counsel, in support of said application

and this Court having confirmed that peti-

tioner had knowledge of the identifying in-

formation contained in the Court's record

but petitioner's original birth certificate

not being contained in the court's file,

directed petitioner to prepare an order to

the Board of Health to break the seal on

petitioner's original birth record and for-

ward certified copies thereof to the Court

for its examination;

AND an order to the Board of Health hav-

ing been signed by this Court on September

37d

30, 1977 directing the Board of Health to

break the seal of the original birth record

and produce such record to this Court by

forwarding for its examination two certified

copies of the original complete birth record

of LINDA FREYA MASON;

AND a hearing having been held on Octo-

ber 24, 1977 at which LINDA FREYA MASON

appeared in person and by Herzfeld & Rubin,

P.C., Gertrude Mainzer, of counsel, and the

Attorney General by Charles Brody, of coun-

sel, and this Court having informed peti-

tioner that the original birth record re-

ceived from the Board of Health contained

additional identifying information not

previously contained in the Court record,

unknown to petitioner and therefore requiring

a good cause hearing;

AND the Attorney General having taken

the position that parents are necessary

parties to this proceeding and suggesting

appointment of a guardian ad litem for

38d

petitioner's natural parents;

AND after receiving memoranda of law and

after hearing arguments on December 5, 1977

by petitioner opvosing the appointment of a

guardian ad litem and by the Attorney General

by Charles Brody, of counsel, in support of

said appointment, this Cowrt rendered its

decision dated January 17, 1978 [92 Misc. 2d

828 (Surr. Ct. Bronx Co.]), directing a good

cause hearing without appointment of a guar-

dian ad litem for petitioner's natural par-

ents;

AND a hearing on the issue of good cause

having been held before the Hon. Bertram R.

Gelfand, Surrogate, Bronx County on March

16, 1978, at which petitioner appeared in

person and with Herzfeld & Rubin, P.C., by

Gertrud Mainzer, of counsel, and the Attor-

ney General by Charles Brody, of counsel,

appeared in opposition and participated as

adversary party on the issue of whether

petitioner had shown good cause for access

39d

and inspection of her adoption and birth

records and witnesses for petitioner having

been heard and cross-examined by the Attor-

ney General;

AND this Court having heard arguments

and receiving memoranda of law by petitioner

in support of her application as entitled to

the relief requested for good cause shown as

required under DRL §114 and in the alterna-

tive because denial of the request would

violate the New York and United States Con-

stitution; and by the Attorney General

opposing petitioner's request because not

entitled thereto because good cause had not

been shown by petitioner under DRL §114 and

because denial of petitioner's request was

not violative of the Constitution of the

State of New York or the Constitution of the

United States;

AND a decision having duly been rendered

by the Court in writing, dated October 26,

1978 holding that DRL §114 did apply to

40d

petitioner, that she had not established

good cause to obtain access to her sealed

adoption and birth records under DRL §114

and that DRL §114 was constitutional;

NOW, On motion of Herzfeld & Rubin, P.C.,

attorneys for petitioner, and the Attorney

General of the State of New York as respon-

dent, it is

ORDERED, ADJUDGED AND DECREED that DRL

§114 applies to petitioner, that she has not

established good cause to obtain access to

her sealed adoption records and to the sealed

records of the Department of Health as re-

quired by DRL §114, and that DRL §114 does

not violate the Constitution of the State of

New York or the Constitution of the United

States; and it is further

ORDERED, ADJUDGED AND DECREED that the

petition of LINDA FREYA MASON for access to

her sealed adoption records and to the sealed

41d

records of the Department of Health relative

to her birth is denied.

ENTER

Surrogate

APPENDIX E

Remittitur

COURT OF APPEALS

STATE OF NEW YORK

1 No. 45

In the Matter of Linda F. M.,

Adopted as a Minor Under the Age

of 14 Years by Dr. Irwin M. and

Anne M. for Leave to Gain Access

to the Sealed Adoption Records,

Appellant.

The appellant in the above entitled

appeal appeared by Martin Guggenheim; the

respondent appeared by Robert Abrams, Attor-

ney General.

The Court, after due deliberation, orders

and adjudges that the order is affirmed, with

costs. Opinion by Cooke, Ch. J. All concur.

The Court further orders that the papers

required to be filed and this record of the

proceedings in this Court be remitted to the

Surrogate's Court, Bronx County, there to be

proceeded upon according to law.

I certify that the preceding contains a

correct record of the proceedings in this

appeal in the Court of Appeals and that the

papers required to be filed are attached.

Joseph W. Bellacosa, Clerk

of the Court

Court of Appeals, Clerk's Office, Albany,

New York

February 24, 1981

APPENDIX F

STATE OF NEW YORK

COURT OF APPEALS

In the Matter of the

Application of

LINDA F. M.,

Adopted As a Minor Under

the Age of 14 Years by Dr. Calendar No.

Irwin M. and Anne M. for 45

Leave to Gain Access to

the Sealed Adoption Records,

Petitioner-Appellant.

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Linda F.

Mason, the petitioner-appelilant above~named,

hereby appeals to the Supreme Court of the

United States from the final order of the

New York Court of Appeals entered in this

action on February 24, 1981.

This appeal is taken pursuant to 28

U.S.C. §1257(2).

MARTIN GUGGENHEIM

Counsel for Petitioner-

Appellant

Dated: New York, New York

May 4, 1981

CERTIFICATE OF SERVICE

I, MARTIN GUGGENHEIM, a member of the

Bar of the Supreme Court, hereby certify

that I have served the within Notice of

Appeal upon all parties required to be ser-

ved by mailing same in a sealed envelope,

with postage prepaid therein, in a post-

office or official depository to Honorable

Robert Abrams, Attorney General of the State

of New York, Two World Trade Center, New

York, New York 10047

Dated: May 4, 1981

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.