FILED

August 24, 1998

Cecil W. Crowson

Appellate Court Clerk

PROMISE DOE, JANE ROE, )

KIMBERLY C. and RUSS C., and )

SMALL WORLD MINISTRIES, )

INC., )

)

Plaintiffs/Appellants, ) Appeal No.

) 01-A-01-9705-CV-00209

v. )

) Davidson Circuit

DONALD SUNDQUIST, ) No. 97C-941

Governor of the State of Tennessee, )

in his official capacity, and )

GEORGE HATTAWAY, in his )

official capacity as the )

Commissioner of the Department of )

Children's Services for the )

State of Tennessee, )

)

Defendants/Appellees. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE 

LARRY L. CRAIN

KEVIN H. THERIOT

101 Westpark Drive, Suite 250

Brentwood, Tennessee 37027

ATTORNEYS FOR PLAINTIFFS/APPELLANTS

JOHN KNOX WALKUP

Attorney General & Reporter

DIANNE STAMEY DYCUS

425 Fifth Avenue North

2nd Floor, Cordell Hull Building

Nashville, Tennessee 37243-0499

ATTORNEYS FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE
1

Jane Roe is a fifty-seven year old citizen and resident of Tennessee who surrendered

her child for adoption in 1956 at the age of seventeen. Promise Doe is birth parent of an

adopted child whom she surrendered in 1990 when Promise Doe was a teenager. 

2

Plaintiffs Kimberly C. and Russ. C. are husband and wife adoptive parents of two

children, whom they adopted in the State of Tennessee. 

3

Small WorldMinistries, Inc. is a non-profit ministry licensed by the State of Tennessee

as a child-placing agency. 

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OPINION

On July 1, 1996, a new adoption law became effective in Tennessee. The

issue before this court today is whether this Act, specifically the provisions

which relate to the release of identifying information to adopted children over the

age of twenty-one years concerning their surrendering birth parents, can stand

under the Tennessee Constitution. The law operates prospectively as well as

retro-spectively by releasing information thought to be qualifiedly confidential

pursuant to the law in existence from 1951 to 1996. The plaintiffs are birth

parents who have surrendered children under this former Tennessee statutory

scheme,1 adoptive parents who have adopted children under the prior law,2 and

a non-profit organization licensed by Tennessee as a child-placingagency3 which

has facilitated adoptions under the prior law. These Plaintiffs contend that the

Act's retrospective effect of disclosing confidential information so as to impair

prior vested rights is a clear violation of Article I, § 20 of the Tennessee

Constitution. In addition, Plaintiffs claim that the Act results in the deprivation

of the privacy rights and interests of Plaintiffs as guaranteed by the Tennessee

Constitution. 

This case has somewhat of a lengthy procedural history. Plaintiffs first

filed their action in federal court, primarily basing their claim on the federal

constitutional right to privacy; they were unsuccessful there. Doe v. Sundquist,

943 F. Supp. 886 (M.D.Tenn. 1996), aff'd, 106 F.3d 703 (6th Cir. 1997). Soon

thereafter, Plaintiffs filed a complaint in the Circuit Court of Davidson County

seeking injunctive relief against the enforcement of certain provisions of this

law, specifically Section 36-1-127(c) of the Tennessee Code.

Contemporaneously, Plaintiffs filed a motion for a temporary restraining order
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pursuant to Tennessee Rule of Civil Procedure 65.03 which the trial court

granted. Plaintiffs then filed a motion for temporary injunction pursuant to

Tennessee Rule of Civil Procedure 65.04 which the trial court denied on May 2,

1997. Subsequently, this court granted Plaintiffs' Rule 10 application for

extraordinary appeal as well as its motion for a stay of enforcement of the law

pending the appeal. In a June 12, 1997 order, this court reserved ruling on the

Rule 10 appeal "pending disposition by the [t]rial [c]ourt of the remaining issues

in the case." However, on July 12, 1997, the trial court summarily granted

Defendants' "motion to dismiss" pursuant to Tennessee Rule of Civil Procedure

12.02(6). In the appeal before us today, Plaintiffs challenge the lower court's

granting of Defendants' 12.02(6) motion to dismiss as well as the May 2, 1997

denial of the Motion for Temporary Injunction.

 Our review is governed by the procedural posture of this case which is the

appeal of the trial court's grant of a Rule 12.02(6) motion to dismiss for failure

to state a claim upon which relief can be granted -- a motion which tests the legal

sufficiency of the complaint and not the strength of a plaintiff's proof. Riggs v.

Burson, 941 S.W.2d 44, 47 (Tenn. 1997). A Rule 12.02(6) motion is therefore

determined by an examination of the complaint alone. Cook v. Spinnaker's of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994) (citing Wolcotts Fin. Serv.,

Inc. v. McReynolds, 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990)). Regarding

the 12.02(6) motion, our supreme court has stated as follows:

Such a motion admits the truth of all relevant and material

averments contained in the complaint, but asserts that such facts do

not constitute a cause of action. In considering a motion to dismiss,

courts should construe the complaint liberally in favor of the

plaintiff, taking all allegations of fact as true, and deny the motion

unless it appears that the plaintiff can prove no set of facts in

support of her claim that would entitle her to relief. 

Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997) (citing Cook,

878 S.W.2d at 938). Once a trial court's grant of a 12.02(6) motion has been

appealed, the appellate court is required to "take all allegations of fact in the

plaintiff's complaint as true, and review the lower courts' legal conclusions de

novo with no presumption of correctness." Stein, 945 S.W.2d at 716 (citing

Tenn. R. App. P. 13(d) and Owens v. Truckstops of Am., 915 S.W.2d 420, 424

(Tenn.1996)).
4Amici Curiae filed a "notice of legislative changes to Tennessee's Adoption Law"

referring the court to changes occurring after the case at bar was heard in oral argument. These

amendments have been duly considered by this court. 

-4-

As stated, Plaintiffs initially sought relief in federal court where they were

unsuccessful. While the federal appellate court's opinion did not address the

state issues which have been raised in state court, the Sixth Circuit Court's

opinion, along with that of the federal district court and the state circuit court,

outline the law of adoption, both past and present, as follows: 

 Under [section 36-1-127(c)(1)of the new adoption law] that was

to go into effect July 1, 1996, 

(A) All adoption records ... shall be made available to the

following eligible persons: (I) An adopted person ... who

is twenty-one (21) years of age or older ...; (ii) The legal

representative of [such] a person ... (B) Information ...

shall be released ... only to the parents, siblings, lineal

descendants, or lineal ancestors, of the adopted person ...,

and only with the express written consent [of] the

adopted person.... 

Id. § 36-1-127(c)(1). The new law also provides for a "contact

veto," under which a parent, sibling, spouse, lineal ancestor, or

lineal descendant of an adopted person may register to prevent

contact by the adopted person. Id. § 36-1-128. The contact veto

can prohibit the adopted person from contacting any spouse,

sibling, lineal descendant, or lineal ancestor of the person

registering the veto. Id. § 36-1-130(a)(6)(A)(I). A violator of the

contact veto provision is subject to civil and criminal liability. Id.

§ 36-1-132. Before disclosure of the identity of an adopted person's

relatives is made, the state "shall conduct a diligent search" for the

relatives to give them a chance to register for the veto. Id. §

36-1-131. In any event, the relatives of an adopted person can veto

only contact, not disclosure of their identities.

Doe v. Sundquist, 106 F.3d at 704.4 With greater elaboration on the pre-1996

adoption law, the federal district court summarized as follows:

In 1949, the Tennessee General Assembly amended the state's

adoption statutes and sealed records of the adopted child's "real

name," any information obtained by the Tennessee Department of

Public Welfare in its investigation of the adoption petition, and any

reports filed by the Department with the court. 1949 Tenn. Pub.

Acts, Chap. 127 §§ 3, 5, and 6. However, the law also stated that

"upon petition by an adopted person who is over twenty one. . .," a

judge could require the department to deliver "the secret records

relating to said adopted persons" and the judge would open and

inspect the record and release the adopted person any contents as he

"in his sound discretion" deemed to be in the best interest of the

adopted person and to the State of Tennessee. Id. § 8. In 1951, the

statue was again amended, and the legislature placed all adoption
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records under seal and forced adoptees seeking information to file

a court order. 1951 Tenn. Pub. Acts, Chap. 202 § 24. Disclosure

was predicated upon a court finding that it would be in the best

interest of the adoptee or the public to have the information

released. Id. at § 26.

Doe v. Sundquist, 943 F. Supp. at 889. In the opinion below which is on appeal

today, the circuit court described the changes made in the law between 1951 and

the present:

In 1982, the legislature amended the law and provided that upon

written request by an adopted person over the age of eighteen (18)

years of age or an adoptive parent with a child under the age of

eighteen (18) years of age, the Department of Human Services

(DHS) shall provide all non-identifying information about the

adopted person and the adopted person's biological family

contained in the sealed adoption records. T.C.A. § 36-1-140 (1982)

(repealed 1995 and transferred to T.C.A. § 36-1-133 in 1995). The

amendment also provided that DHS may release only the following

information: the date, time, height, and weight of the adopted

person at birth; the age of the adopted person's biological parents

at birth; the nationality, ethnic background, race, and religious

preference of the biological parents; the educational level of the

biological parents; a general physical description of the biological

parents; any non-identifying information concerning other children

of the biological parents at the time of the adopted person's birth;

and any available health history of the biological parents and any

other biological relatives. Id. The amendment provided that the

release of information did not authorize or require the release of

information that would lead to the discovery of the identity or

whereabouts of the biological parents. Id.

In 1985 the legislature again provided for further disclosure of

information in adoption records if DHS obtained consent from the

biological parents. 1985 Tennessee Public Acts, Chapter 285; 

T.C.A. § 36-1-141.

Since 1985 the legislature has twice more amended the statute.

T.C.A. § 36-1-141 (1989). The law provided that upon written

request of an adopted person over the age of twenty-one (21), DHS

shall search sealed adoption records in its possession for

information concerning the location of the adopted person's

biological parent(s). Id. If DHS located the biological parent(s),

DNS was to notify the parent(s) of the adopted person's request;

and, if the parent(s) objected, then no information in the adoption

record was to be disclosed. Id. If the biological parent(s), or either

of them, consented, the department of human services was to

provide the adopted person with the name, address, and identifying

information of the biological parent(s). Id. If the biological

parent(s) could not be located, the adopted person was to provide

the office of vital records with the correspondence from the DHS

and obtain a copy of their birth certificate. Id.
-6-

Doe v. Sundquist, 1997 WL 354786, at *3 (Tenn. Cir. Ct. 1997). With the

history of the statutory law as well as of this case delineated above, we turn to

a discussion of the issues on appeal. 

I. TENNESSEE CONSTITUTIONAL

 PROTECTION AGAINST RETROSPECTIVE LAWS

Plaintiff's contend that the retroactive provisions of the Act deprive them

of their rights as guaranteed by the Tennessee Constitution, specifically Article

I, § 20 which provides "[t]hat no retrospective law, or law impairing the

obligations of contracts, shall be made." For purposes of this constitutional

provision, the term "retrospective laws" has been defined by the Tennessee

Supreme Court as those laws "which take away or impair vested rights acquired

under existing laws or create a new obligation, impose a new duty, or attach a

new disability in respect of transactions or considerations already passed."

Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978); see also Owens v.

Truckstops of Am., 915 S.W.2d 420, 427 (Tenn. 1996). Plaintiffs argue that the

Act takes away or impairs a vested right in "the confidentiality of the identifying

information in adoption files" acquired under existing laws. We agree.

A.

TENNESSEE LAW RELATING TO ARTICLE 1, § 20

Despite the fact that Tennessee courts, through the years, have often

addressed issues of retrospective laws and vested rights, no case has articulated

a clear test for discerning when a retrospective law impairs a vested right or for

that matter when a right is vested. An evaluation of the case law reveals that, in

discussing this issue, many courts have distinguished between the procedural or

remedial and the substantive nature of the law. One supreme court case clarified

how this determination relates to the ultimate issue of a retroactive law's

unconstitutionality as follows:

 remedial statutes, or statutes relating to remedies or modes of

procedure, which do not create new or take away vested rights, but

only operate in furtherance of the remedy or confirmation of rights

already existing, do not come within the legal conception of a

retrospective law, or the general rule against the retrospective

operation of statutes.
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Dowlen v. Fitch, 264 S.W.2d 824, 826 (Tenn. 1954) (citing American

Jurisprudence at Section 482). Thus Dowlen takes the position that remedial

laws are not, legally speaking, "retrospective" laws and, therefore, the

constitutional prohibition does not apply. Other cases have taken this principle

one step further suggesting that when applied retroactively, a substantive statute

by its very nature will impair vested rights: "If [a statute] is 'substantive,' it is

not applied retro-actively because to do so would 'disturb a vested right or

contractual obligation.'" Kuykendall v. Wheeler, 890 S.W.2d 785, 787 (Tenn.

1994) (quoting Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976) ("The

usual test of the 'substantive' or 'procedural' character of a statute for this purpose

is to determine whether or not application of the new or amended law would

disturb a vested right or contractual obligation.")). 

Under the rationale of the preceding cases, the only question that a court

need ask is whether the statute is substantive or procedural. We are persuaded

that such an inquiry begs the ultimate question of whether the retroactive

application of a law will "take away or impair vested rights acquired under

existing laws or create a new obligation, impose a new duty, or attach a new

disability in respect of transactions or considerations already passed." Morris,

572 S.W.2d at 907; Owens, 915 S.W.2d at 427. Our position finds support in

certain Tennessee cases which have acknowledged that the

substantive/procedural distinction is not the definitive factor. In Henderson v.

Ford, the supreme court referred to an earlier case where "the Court was careful

to point out that even a statute whose primary purpose was procedural could not

be applied so as to impair a contractual obligation or disturb a vested right."

Henderson v. Ford, 488 S.W.2d 720, 721 (Tenn. 1972) (citing National Life &

Accident Ins. Co. v. Atwood, 29 Tenn. App. 141, 194 S.W.2d 350, (1946)); see

also Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993) (affirming "the

principle that retrospective application of a remedial or procedural statute is

constitutionally forbidden if it takes away a vested right or impairs contractual

obligations" and finding that the retrospective application of the law at issue, a

remedial law, would impair accrued contract rights). In Henderson, the court

resolved the ultimate issue to be "in essence, whether the application of the . . .

amendment [at issue there] to the defendant-in-error would impair any such right
-8-

vested in him at the time of the enactment of the amendment." Henderson, 488

S.W.2d at 722. 

Accordingly, we find that the ultimate issue in the case at bar is whether

or not this new law, when applied retroactively, impairs vested rights. We

receive guidance from other Tennessee cases which have approached the Article

1, § 20 issue by asking this question. In Miller v. Sohns, 464 S.W.2d 824, 825

(Tenn. 1971), the court addressed the issue of whether the Uniform Contribution

Among Tort Feasors Act could be applied retroactively. There, the plaintiff filed

a suit against three defendants following an automobile accident. He

subsequently entered into a covenant not to sue with two of these defendants in

exchange for their payment to him of $5000. The remaining defendant sought

to reduce the judgment against him by $5000 pursuant to the Uniform Act which

was enacted after the accident. The court found that, at the time of the

occurrence of the accident, when the substantive rights of the plaintiff accrued

"one of these rights was for a consideration, to make a covenant not to sue,

without the amount paid by the alleged joint tort-feasor reducing the amount he

might recover in a subsequent suit." Id. at 826. In so holding the court stated

that "the test of impairment is whether the right in full existing at the time of its

accrual would be diminished by application of the statute." Id. 

Another "test of the impairment" employed by our supreme court was to

ask whether the retroactive legislation "deprives a person of his reasonable

expectations under prior law." Ford Motor Co. v. Moulton, 511 S.W.2d 690,

696 (Tenn. 1974). In Moulton, the issue was whether it was constitutionally

permissible to apply an amended statute of limitations which had the effect of

reviving an otherwise barred cause of action. Adopting the court of appeals'

analysis but not its conclusion, the supreme court held that "[t]he statute had run

under the prior law prior to the amendment; and, therefore, petitioners had a right

to 'expect' under the prior law they would not be sued; but, if sued, they were

assured of a perfect defense." Id. at 697; see also Buckner v. GAF Corp., 495

F. Supp. 351, 356 (E.D. Tenn. 1979) (in holding that the defendants obtained a

vested right in their statute of limitations defense and thus that the asbestos

exception to the statute could not revive plaintiff's claim, the court stated that the

Tennessee Supreme Court "has not retreated from its holding that: ' . . .
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retroactive legislation is unconstitutional 'only when it deprives a person of his

reasonable expectations under the prior law.' ' "). Yet another case sheds some

light on the determination by defining "vested rights" as follows: "The words

(vested rights) are used as implying interests which it is proper for the state to

recognize and protect and of which the individual could not be deprived

arbitrarily without injustice." Morris v. Gross, 572 S.W.2d 902, 905

(Tenn.1978)(quoting 16 Am.Jur.2d Constitutional Law § 421 (1964)).

In presenting the cases as we have, we do not intend to indicate that there

is no relationship between the substantive/procedural question and the vested

right question. Quite the contrary, whether a statute is substantive or procedural

can depend upon whether or not its retroactive application impairs a vested right.

The case of Brewer v. Aetna Life Ins. Co., 490 S.W.2d 506, 510 (Tenn.1973),

is illustrative of the interplay between these two issues. There, the court

considered the retroactive application of a statute which "create[d]" a rebuttable

presumption that a fireman who dies of a disease of the lungs, hypertension or

heart disease, did so in the line of duty, and in the course and scope of his

employment." In concluding that the statute did not impair a vested right, the

court noted the remedial nature of the law and quoted the United States Supreme

Court as follows: "It must be evident that the right to have one's controversies

determined by existing rules of evidence is not a vested right. These rules

pertain to the remedies which the state provides for its citizens . . . " Id. at 511

(quoting Marx v. Hanthorn, 148 U.S. 172 (1893)).

B.

 RETROACTIVE APPLICATION 

OF TENNESSEE CODE ANNOTATED SECTION 36-1-127(c)

First of all, we reiterate that this case is before the court of appeals on a

Rule 12.02(6) dismissal which restricts our review to the sufficiency of the

complaint alone and which mandates that we construe said complaint liberally

taking all allegations of fact as true. Regarding the plaintiffs in this action, the

complaint alleges that the plaintiff Promise Doe is a birth parent who surrendered

her child for adoption in Tennessee in 1990 at which time she was assured that
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the information would remain confidential and sealed. The complaint alleges

that "the emotional trauma and personal sacrifice" of Promise Doe "was

attenuated in part only by the promise as set forth in the then existing adoption

law that the details surrounding her decision would remain confidential for the

rest of her life." Plaintiff Jane Roe is also a birth mother who surrendered her

child for adoption at the age of seventeen in 1956--she alleges that it is essential

that her identity and her personal circumstances at the time of the birth of her

first child remain confidential. Plaintiffs Kimberly C. and Russ C. are adoptive

parents of two children whom they adopted under the prior law. They claim that

they were required to divulge detailed information of a private nature to the

adoption agency which is now a part of the adoption records. Thus, from the

complaint, it is clear that the information at issue in this case concerns some of

the most private and intimate details of a person's life. It is not the sort of

information that people casually make public, and, in fact, it involves matters

that persons have historically gone to great lengths to keep private.

The final plaintiff, Small World Ministries, Inc., is a non-profit ministry

licensed by the State of Tennessee as a child-placing agency. In order to

maintain its licence, Small World has to abide by certain standards promulgated

by the State Department of Human Services. One such regulation, Chapter 1240-

4-9.05, Standards for Child-Placing Agencies, mandates that Small World

provide birth parents with:

A clear definition of the confidential aspects of the services

provided for them and their child and of the opportunity available

to them at any time to waive their right of privacy if their child,

upon reaching the age of maturity, wishes to know more about them

or to see them.

This regulation was adopted November 3, 1988 and since that time, Small World

has routinely advised birth parents of their state-recognized right to

confidentiality.

Initially, we reject the following assertion made by Defendants: "The new

legislation has not changed any right of the plaintiffs or abolished any remedy

available to them. Rather, the new statute has simply changed the method for

obtaining such information to be easier and less costly for adoptees." For over

forty years, the identity of an adoptee's birth parents has been available to that
5We note that the fact that the General Assembly can change the law does not

undermine the legitimacy of a person's reliance on official promises of confidentiality or the

creation or existence of a vested right deserving of constitutional protection. In fact, since

legislation is generally presumed to be prospective, see Woods v. TRW, Inc., 557 S.W.2d 274,

276 (Tenn. 1977); Henderson v. Lutche, 938 S.W.2d 428, 430 (Tenn. Ct. App. 1996), persons

could reasonably conclude that subsequent legislative changes would have only prospective

effect. That is exactly what Tennessee Constitution article I, § 20 is all about.

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adoptee in only two circumstances: first, after a court's determination that it was

in the best interest of the adopted person or the public and, more recently, with

consent of the birth parent(s). While non-identifying information has been more

readily available in recent years, the law has protected the identity of the parents

except in these "best interest" or "consent" circumstances. Under the new law,

all of the adoption record including the birth parents' identity is available to the

adoptee regardless of a best interest determination and regardless of the birth

parents' consent. This is a material change.5

In Spencer Kellogg & Sons, Inc. v. Lobban, 315 S.W.2d 514 (Tenn.

1958), our supreme court defined "substantive law" as "that part of the law which

creates, defines, and regulates rights; that which creates duties, rights and

obligations; the law which relates to rights and duties which give rise to a cause

of action. "Procedure," on the other hand, has been described by the court as

follows:

'[T]he mode or proceeding by which a legal right is enforced, as

distinguished from the law which gives or defines the right, and

which by means of the proceeding, the court is to administer--the

machinery, as distinguished from its product; . . . including

pleading, Process, evidence, and practice . . .. Practice [is] the form

. . . for the enforcement of rights or the redress of wrongs, as

distinguished from the substantive law which gives the right or

denounces the wrong. . . .'

Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn.1976)(quoting Jones v.

Garrett, 386 P.2d 194, 198-99 (Kan.1963)). The provision of the new adoption

law at issue creates and defines a right of adopted persons which has not

previously existed--that is a right to unqualified access to the identity of their

birth parents. As such, Section 36-1-127(c) of the Tennessee Code is a

substantive change in the law and not merely a procedural or remedial one. 

The case of Anderson v. Memphis Housing Authority, 534 S.W.2d 125
6

In analyzing the issue of retrospective legislating, the lower court adopted the threeprong approach found in Ficarra v. Department of Regulatory Agencies, 849 P.2d 6, 15

(Colo.1993):

[I]n determining whether a retroactive statute impairs or destroys vested rights

the most important inquiries are (1) whether the public interest is advanced or

retarded, (2) whether the retroactive provision gives effect to or defeats the

bonafide intentions or reasonable expectations of effected persons, and (3)

whether the statute surprises persons who have long relied on a contrary state

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(Tenn. Ct. App. 1975), is analogous. That case involved an inverse

condemnation law which, in pre-amendment form, entitled land owners "to

recover in damages the value of the land or right taken, no more and no less."

Id. at 128. As amended, the law provided that the owner recover "for greater and

a new and different measure of damages than was previously allowed, viz.,

attorney fees etc." Id. The court held that the Amendment "is one that does not

merely enlarge or affect a procedure for the enforcement of an existing right, but

on the contrary, creates a new right of recovery theretofore nonexistent." Id. In

the same manner, we find that Section 36-1-127(c) does not merely enlarge or

affect a procedure for an adoptee's procurement of his or her birth parents'

identity. Rather, this law creates a new right to this information which has

heretofore been nonexistent.

Though, under certain Tennessee cases, the substantive nature of the law

would suffice to support a conclusion that the law's retrospective application

violates Article 1, § 20, we hold that the ultimate issue is whether the retroactive

application of this law will impair the rights vested in Plaintiffs. To reiterate,

vested rights have been defined as those "interests which it is proper for the state

to recognize and protect and of which the individual could not be deprived

arbitrarily without injustice." See Morris v. Gross, 572 S.W.2d 902, 905

(Tenn.1978). Additionally, our supreme court has focussed on whether the

retroactive legislation deprived a person of his reasonable expectations under the

prior law. Ford Motor Co. v. Moulton, 511 S.W.2d 690, 696 (Tenn.1974).

Applying these standards to the case at bar, we find that the retrospective

application of Section 36-1-127(c) does impair the vested rights of birth parents

who surrendered their children for adoption under former law. Under the prior

law, these birth parents had a reasonable expectation that any identifying

information would remain confidential if they so desired.6 While the DHS
of the law.

See Doe v. Sundquist, 1997 WL 354786, at *9. Though we do not adopt the Colorado standard

as our own, we note that numbers two and three embrace the same concern as ourreasonable

expectations inquiry. Where we disagree is with the lower court's conclusion that there was

no such expectation.

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regulation mandating that birth parents be assured of the confidential aspects of

the adoption-related services was merely a state regulation and only adopted in

1988, it is indicative of the expectation of confidentiality prevalent under the

prior law. The birth mother plaintiffs all proclaim that they were assured

confidentiality and expected the same under that law. We find that this interest

in the confidentiality of identifying information is a proper interest for the state

to recognize and protect. Life-changing decisions were made based upon this

expectation and to now deprive those who relied upon their legitimate

expectation under the law would be to deprive them of a vested right.

It is significant, as the complaint alleges, that Plaintiffs did not voluntarily

release this information to the government but rather were required to do so as

a condition to being able to use the adoption machinery exclusively available

from the state. In return for providing this information, these persons were

assured that their privacy would be protected by keeping their information

confidential except in the narrow, statutorily defined circumstances. The effect

of the challenged statutes is, for all practical purposes, to remove any restriction

on access to the heretofore confidential information.

We find that the parties challenging the statutes have presented compelling

evidence depicting their reliance on the statute's confidentiality provisions and

the significant effects that retroactively changing the rules would bring about.

Constitutional analysis frequently requires courts to weigh competing rights and

interests, but in the context of Tennessee Constitution article I, § 20, the balance

is always struck in favor of vested rights.

We note that our ruling does not extend to all information contained in

adoption records as only the identifying information of birth parents has been

consistently protected throughout the years. Therefore, our holding with regard

to Article 1, § 20 does not encompass the adoptive parent plaintiffs. Their

redress is through the legislative process.
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Plaintiffs present and the court below addresses issues of Right of Privacy,

Equal Protection and Freedom of Conscience. Since the foregoing issue of

Retrospective Legislation is determinative we do not address those issues here.

It should be noted that the trial court's memorandum opinion cited certain

affidavits as a basis for its disposition of the case. This would indicate that the

dismissal below was summary judgment, Tenn. R. Civ. P. 56, instead of Rule

12.02(6) grounds. Nevertheless, our result would be the same under either

review.

The judgment of the trial court is therefore reversed, and the cause is

remanded to the trial court for further proceedings.

_________________________________

WALTER W. BUSSART, SPECIAL JUDGE

CONCUR:

______________________________________

HENRY F. TODD, PRESIDING JUDGE, M.S.

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WILLIAM C. KOCH, JR., JUDGE