# FILED

August 24, 1998 Cecil W. Crowson Appellate Court Cle rk PROMISE DOE, JANE ROE, ) KIMBERLY C.

and RUSS C., a

nd ) SMALL WORLD MINISTRIE S, ) INC., ) ) Plaintiffs/Appell

ants, ) 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 capa

city, and ) GEORGE HA

TTAWAY, in

his ) official capacity as the ) Commissioner of the Department of ) Children's Services for the ) State of Tennessee, ) ) Defendants/Appel

lees. )

)

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 No

rth 2nd Floor, Cordell Hull Building Nashville, Tennessee 37243-0499 ATTORNEYS FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE1 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 i s birth parent of an adopted child whom she surrendered in 1990 when Promise Doe was a teenager.

2 Plaintiffs Kim

berly C. and Russ. C. are husband and wife adoptive parents of two children, whom they adopted in the State of Tennessee.

3 Small Wor ld Mi nistries, Inc. is a non-profit ministry licensed by the State of Tennessee as a child-placing agency.

-2-



# OPINION

On July 1, 1996, a new adoption law becam e effective in Tennessee

. The issue before this court to day i s whether this Act, specifically the pr

ovisions which relate to the rele

ase of identifying inf

ormation to adopted ch

ildren over the age of twenty-one year

s concerning their su

rren dering birth parents , can stand underthe Te nnes see Constitution. The law operates prospectively as well as retro-spectively

by releasing inform

ation thought to

be qualifiedly

confidential pursuant to the law in existence from 1951 to 1996. The plaintiff s are bi rth parents who have surrendered children under this former Tennessee statutory scheme, 1 adoptive parents who have adopted children under the prior law, 2 and

anon-profit organiza

tion licensed by Tennessee as a child-placing agency 3 whi ch has facilitated adopti

ons under the prior la

w. These Plaintiffs contend

that the Act's retrospective effect of disclosing confidential information so as to impair prior vested rights is a

clear viola

tion of Article I, § 20 of the Tennessee Constitution. In addition, Plaintif fs claim that the A

ct results in the depr

ivation of the privacy rights and inte rests of Plaintiffs as guaranteed by the Tennessee Constitution.

This case has somewhat

of a lengthy procedur

al histo ry. Plaintiffs f

irst filed their action in fede ra l court, primarily basing their claim on the federal constitutional right to privacy; they were unsuccessful there. Doe v. Sundquis t , 943 F. Supp. 886

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

laintiffs filed a c

omplaint in the Circuit Court

of Davidson

County seeking injunctive relief a gainst the enfor cement of certai

n provisions of this law, specifi cally Section 36-1- 127 (c) of the Tennes see Code

. Contemporaneously, Plaintiffs filed a motion for a temporary restraining order-3-

pursuant to Tennessee Rule of Civil Procedure 65.03 which the tria l court granted. Plaintiffs t hen filed a motion for temporary injunctio

n pursuant to Tennessee Rule of Civil

Procedure 65.04 which the trial court denied on May 2, 1997. Subsequently, t his court granted Pla intiffs' Rule 10 app

lication for extraordinary appeal as well as i ts motion for a stay of enforcement of the law pending the appeal. In a June 12, 1997 orde r, this court rese

rved ruling on the Rule 10 appeal "pending disposi tion by the

[t]rial [c]ourt of the remaining issues in the case." How

ever, on July 12, 1997 , the trial court s ummarily gr

ant ed Defendants'

"motion to dismiss" pursuant to Tennessee Rule of Civil Procedure 12.02(6). In the appeal befor e us to day , Plaintiffs challenge the lower court's granting of Defendants'

12.02(6) motion to dism iss as well as the Ma

y 2, 1997 denial of the Motion f

or Temporary Inj unction.
Our review is gove

rned by the procedura

l posture of this case

which is the appeal of the

trial court's gra

nt of a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted -- amotion which tests the legal sufficiency of the complaint and n ot the strength of a pla intiff'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 o f the complaint alon e. Cook v. Spinnaker's of Rivergate, Inc. , 878 S.W.2d 934, 938 (Tenn. 1994

) (citing Wolcotts Fin. Serv., In c. v. McReynolds , 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990)). Regard in g the 12.02(6) motion,

our supreme court ha

s stated as follows: Such a motion admits

the tru th 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 moti on to dismiss, courts should construe the com plaint libe

ral ly in favor of the plaintiff, taking all allegatio ns of fact as true, an

d deny the motion unless it appears that the plaintiff can prove n o set of facts in support of her claim that would entitle her to relief. Stein v. Davidso

n Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1997 ) (citing Cook , 878 S.W.2d at 938). Once a trial co urt's grant of a 12.0 2( 6) motion has been appealed, the appellate court is require d to "take all allegati ons of fact in the plaintiff's co mpla int as true, and re view the lower co

urts' legal conclus

ions de

novo with no presumption o f c orrectness." Stein , 945 S.W.2d at 71 6 (citing Tenn. R. App. P. 13(d) and Owens v. Truc kstops of Am. , 915 S.W.2d 420,

424 (Tenn.1996)).4 Amici Curiae filed a "no tice of legislative changes to Tennessee's Adoption Law"

referring the court to changes occurring after the case at bar w

as heard in oral a

rgument. 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 federa l appellate court' s opinion did not address t he state issues which have be en raised in state c

ourt, the Sixth Cir

cui t Cour t's opinion, along with that of th e federal district court and th e state circuit cou

rt, outline the law of a

doption, both past and pr esent, as follows: Under [section 36-1-127(c)(1) of the new adoption law] that was to go into effect Ju ly 1, 1996, (A) All adoption records .. . shall be made ava ilableto the followingeligible persons: (I) An adopted person ... who is twenty-one (21) ye

ars of age or older ...; (

ii) The legal represe ntat ive of [such] a person ... (B) Info rmation ... shall be re leased ... only to the parents, siblings, lineal descendants, or lineal ancestor s, of the adopted person

..., and only with the express written c onsent [of] the adopted person.... Id. § 36-1-127(c)(1).The new law also provid es for a " contact veto," under which a parent, si bling, spouse, linea l ancestor, or lineal descendant of an ado pted person may regi ster to pr even t contactby the adopted pers on. Id. § 36-1-128. The contact veto can prohibit t

he adopted person from contacting any spouse, siblin g , lineal descendant, or lineal ancestor

of the person registering the vet o. Id. § 36-1-130(a)(6)(A)(I). A violator of the contactveto 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 sea

rch" for the relatives to give them a ch ance to register for the veto

. Id. § 36-1-131. In any event, the relatives of an adopted person can veto only contact, not disc

losure of their ident

ities.
Doe v. Sundquist, 106 F.3d at 704. 4 With greater elabor ation on the pre-1996 adoption law, the f

ederal district co

urt summarized as f

ollows: In 1949, the Tennessee General Assembly amen de d the state's adoption statutes and sealed records of the adopted child's "real name," any information obtai ned by the Tennessee

Department of Public Welfare in its investigation of the adopti on petition, and any reports filed by the Departmen t wi th the court. 1949 T enn. Pub. Acts, Ch ap. 127 §§ 3, 5, and 6. However, the law also stated that "upon petition by an adopted pe rson who is over twenty one. . .," a ju dge could require the department to deliver "the secret rec ord s relatingto said adopted persons " and the ju dge woul d open and inspect the record and relea se the adopted person any con tents as he "in his sound disc re tion" deemed to be in t he best interest of t

he adopted person and to

the State of Tennessee. Id. § 8. In 1951, the statuewas again ame nded, and the legisla ture placed all adop

tion-5- records under seal and

forced adoptees se

eking information to file acourt order. 1951 T

enn. Pub. Acts, Chap. 202 § 24. Disclosure wa s predicated upon a court finding that it would be in the bes t interest of the adoptee or the

public to have the in

form ation 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 th at 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

o f eig hteen (18) years of age, the Department of Human Service s (DHS) sha ll p rovide all non-identi fying information abo

ut the ado pted person and the adopted person's biological f

amily contained in the sealed adoption rec ords. T.C.A.

§ 36-1-140 (1982) (repealed 1995 and transferred to T.C.A. § 36-1-133 in 19 95). The amendment

also provided that DHS may relea se only the following information: the date, time, height, and weigh

t of the adopted person at birth; the age of the adopted person's biological parents atbirth; the nationalit

y, ethni c ba ckground, race, and religious preference of the biological par ents; the educationa

l level of the biological parents; a general physical description of the biological parents; any non-identifyi ng information

concerning other children of the biologic al parents at the time of the adopted person's

birth; and any available healt

h history of the biologic al parents and any o ther biological relati ves. Id. The amendment pro vided that the release of information did not

authorize or requ

i re the release of in fo rmation

that would lead to the

discovery of the iden

tity or whereabouts of the bi ological parents. Id. In 1985 the legislature a

gain provided for further

disclosure of information

in adoption records

if DHS obtained c

onsent from the biological pa r ents. 1985 Tennesse e Public Acts, Ch

apter 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-o ne (21), DHS sh all search sealed adop tion records in its possession fo r informat i on concerning the location of the adopted person's biological parent(s). Id. If DHS located the biologica l p arent(s), DNS was to notify the par ent(s) of the adopte

d person's request; and, if the parent(s) objected , t hen no information in t he adoption record was to be

disclosed. Id. If the biological parent(s), or either of them, consented,

the departm

ent of human services wa s to providethe adopted person with the name, ad

dress, and identifying information

of the biological parent (s). Id. If the biological parent(s) could not be l ocated, the adopte d person was to provide the office of vital record s with the correspond ence from the DHS and obtain a copy o f their birth certifica te. Id.-6-

Doe v. Sundqu ist , 19 97 WL 354786, at *3 (T enn. Cir. Ct. 19 97). With the history of the statutory law as w ell as of this case de

lineated above, w

e turn to a discussion of th e 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 guar

anteed by the Tenne ssee Constitution, spe cifically Articl

e I, § 20 which provides "[t]hat no retrospective law, or law impairi ng the obligations of contracts, shall be mad e." For purposes of this constitutional provision, the term "retrosp ective laws" has b

een defined by the Tennessee Supreme Court as those laws "which t ake away or impair

vested rightsacquired underexisting laws or create a new obli gation, impose a new

duty, or attach a

new disability in

re spect of transactio ns or consideratio ns 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 t hat the Act takes away or impa

irs a vested right in " the confidentiality o f the identifying information in adoption files" acquired under existing laws. We agree.

A. TENNESSE

E LAW RELA

TING TO AR

TICLE 1, § 20
Despite the fact tha

t Tennessee courts, thro ugh the years, have often addressed issues of retrospect ive laws and vested rights, no case has articulated

aclear test for discerning when a retrospective law impairs a vested right or for that matter when a ri

ght is vested. An ev

aluation of the case

law reveals that,

in discussing this issue, many cour ts havedistinguished betwee n the procedural or remedial and the substantive nature of the law. One supreme court case clarified how this determin atio n relates to the ultimate issue of a retroactive law's unconstitutionality as f

ollows: remedial statutes, o r statutes relating to remedies or

modes o f procedure, which do not

create new or take awayvested rights, but only operate in further

ance of the remed

y or confirmation of

rights alreadyexisting, do not come within th e legal conception of a retrospective

law, or the gen era l rule against the re trospective operation of statute s.-7-

Dowlen v. Fitch , 26 4 S .W.2d 824, 826 (Tenn. 1954) (citing American Jurisprudence at Section 482). T hus Dowlen tak es the position that remedial laws are not, legally sp eaking, "retrospe

ctive" laws and,

t herefore, the constitutional prohibition does not apply. Othe

r cases have

taken this principle

one step further suggest

ing that when applied retroacti vely, a substantive s

tatute by its very nature w

ill impair vested right s: "If [a statute] is 'su bstantive,' it is not applied retro-ac

tively because to do so would 'disturb a vest ed right or contractual obligation.'" Kuykendall v
. Wheeler , 890 S.W.2d 785, 787 (Tenn. 1994) (quoting Saylors v. R iggsbee , 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 a mended l aw would disturb a vested ri ght or contractual o bligation.")).

Under the rationale of

the preceding case s, the only question that a court need ask is whether

the statute issubstantive or procedural. We are persuaded that such an inquiry begs t he u ltimate question of w hether the retroa

ctive application

of a law wil l "take away or impair vested rights acquired under existing la ws or create a ne w obligation, impose

a new duty, or atta

ch a ne w disability in respect

of transactions or con siderations alread y passed." Morris , 572 S.W.2d at 907; O w ens , 915 S.W.2d at 42 7. Our position finds

support in certain Tennessee cases which have acknow ledged that th e 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 oblig ation or disturb a v ested right." Henderson v. Ford , 488 S.W.2d 720, 721 (Tenn. 1972) (c

iting National

Life & Accident Ins. Co. v. Atw

ood , 29 Tenn. App. 141,

194 S.W.2d 350, ( 1946)); see also Ke e v. Sh elter Ins. , 852 S.W.2d 226, 228 (Tenn. 1993) (a

ffirming "the principle that retrospective application of a r emedial or procedu ral statute is constitutionally

forbidden if it takes away a vested right or impairs contractual obligations" and finding that the re trospective applica

tion of the law at

issue, a remedial law, would impai r accrued contra

ct rights). In Hende rson , the court resolved the ultimate issue to be "in essence, whether t he application of t he . . . amendment

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

vested in him atthe time of the enac tment 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 th is new law, when applied re troactively, impairs vested rights. W e receive guidance from other Tennessee cases which have approached the Article 1, § 20 issue by asking this que stion. In Miller v. Sohns , 464 S.W.2d 824, 825 (Tenn. 1971), the court add ressed the issue of w

hether the Unifor

m Contribution Among Tort Feasors Act

could be applied retroactively. There, the plaintiff filed

asuit against three de fendant s following an autom obile accident. He subsequently

entered into

a covenant not to sue w

ith two of these def

endants in exchange for their

payment to him of

$5000. The remain

ing defendant

sought to reduce the judgment against hi m by $5000 pursuant to the Uniform Act which

was enacted after the

accident. The c

ourt found that, at t

he time of the

occurrence of the accident, w hen thesubstantive rights of the plaintiff accrued "one of these rights was

for a consideratio

n, to m ak e a covenant not to sue, without the amount

paidby the alleged joint tor t-feasor reducing

the amount he might recover in a subsequent suit." Id. at 826. In so holding th e court stated that "the test of impair

ment 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 impair

ment" employed by our s upreme court was t

o ask whether the retr oactive legislation " deprives a person of his reasonable expectat ion s under prior law." Ford Motor Co. v. Mo ulton , 511 S.W.2d 690, 696 (Tenn. 1974). I

n Moulton , the issue was wh ether it was consti

tutionally perm issibleto apply an amended statute of limitations which had the eff ect o f reviving an otherwise barr ed cause of action.Ado pting the court of appeals ' analysis but not its conclusion, the supreme court held that "[t] he statute had run underthe prior law prior

to the amendment;and, therefore, petitioners had a

right t o '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 Bucknerv. GAF Corp. , 495 F. Supp. 351, 356 (E. D. Tenn. 1979) ( in holding that the defe

ndants obtained a vested right in their statute of limitations defe

nse an d thus that the asbestos exception to the statute could

not revive plaintiff

's claim, the cour

t stated that the Tennessee Supreme Court "ha s not retreated f

ro m its holding tha t: ' . . .-9-

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 "ve sted ri ghts" as follows: "T he words (vested rights) are used as implying interests w

hich it i s pr oper for the state t o recognize and protect and of w hich the individual coul d no t be d eprived arbitrarily

without injustice." Morris v. Gross , 57 2 S.W. 2d 902, 905 (Tenn.1978)(quoting 16 Am.Jur.2d Constitutional Law § 421 (1964)).

In presentingthe cases as we have, we do not intend to indicate that there is no relatio nshi p between the substantive/procedural question and the vested right question. Quite the contrary, whether a statuteis substantive or procedural

can depend upon whether o r not its retroactive a

pplication 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 inter p lay between these two issues. There, the court considered the retroactive application of astatute which "create[d]" a r ebuttable presum p tion that a fireman w

ho dies of a disease of

the lungs, hypertensi

on or heartdisease, did so in the line of duty , and in the course a nd scope of his employment." In concluding that the statute did not impair

a vested right, the courtnoted 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 v ested right. Th ese rule s 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 SECTIO N 36-1-127(c)

First of all, we reite

rate that th

is case is before the court of appeals on a Rule 12.02(6) dismissal w hic h rest ricts our review t

o the sufficiency of

the complaint

alone and

which mandates thatwe construe said c omplaint liberally taking all allegations of f act 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 T

ennessee in 1990

at which time she was assured that-10-

the information would r

emain confidential

and seale d. 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." Pl

aintiff Jane Roe is also a birth mother who surrendered her childfor adoption at the age of seventee n in 1956--she allege s that it is essential that her identity and her personal circumsta nces at the time of t

he birth of h er first child remain confidentia

l. Plaintiffs Kimbe

rly C. and Russ C.are adoptive parents of two children whom they adopted under the prior law. They claim that they were re quired to divulge detailed inf ormation of a privat

e nature to the adoption agency which is now a part of the adoption records. T hus, from the complaint, it

is clear that the informatio

n at issue in this case

concerns some of the most private and intim ate details of a per

son's life. It is no

t the sort of information

tha t people casually make public, and, in fact, it involves matters that persons have historically gone to great lengths to keep private.
The final plaintif

f, Small World

Ministries, Inc., is a non-profit ministry licensed by the State of Te nnessee as a child-p

lacing agency. I n order to maintain its licence, Small World has to abide by certain standards promulgated by the State Depar

tment of Human Ser

vices. One such r

egulation, Chapter

1240- 4-9.05, S tandards for Child- Placing Agencies,

mandates that Smal

l World provide birth parent

s with: A clear defini

tion of the confidential aspects of the services provided for them an

d their child and of the opportunity a

vailable to them at any time to wa ive their right of priva cy if their child, upon reaching the age of

maturity, wishes to know more about them or to see them.
This regulation was adop

ted November 3, 19 88 and since that time , Small World has routinely advised bir t h parents of their st ate-recognized r

ight to confidentiality.
Initially, we reject the

following assertion

made by Defendant

s: "The new legi slationhas not changed any right of the plaintiffs or abolished any remed y available to them. Rather,

the new statute has

simply changed the me

thod for obtaining such information to be easier and less

costly for adoptees." For over forty years, the identit

y of an adoptee's bir

th parents has been av ailable to that5 We 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 creationor existence of a vested right dese

rving of constitutio

nal protect ion. 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 subsequ ent legislative changes would have only prospective effect. That is e

xactly what Tenne

ssee Constitution ar

ticle I, § 20 is all a

bout. -11- 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, mo

re recently, wi

th consent of the birth parent(s). While non-identifying information has been more readilyavailable in recent years, the law has protected the identity of the pare

nts except in these "best interest" or "consent" circumstances. Under the new law, all of the adoption record including the birth par ents' identity is available

to the adoptee regardless of a be st i nterest d etermination and re gardless of the birt

h parents' consent. This is a material change. 5

In Spencer Kellogg & S o ns, Inc. v. L obban , 315 S.W.2d 514 ( Tenn. 1958), our supreme court de fined "substantive la

w" as "that part of

the law which creates, defines, and regul ate s rights; that which creates duties, rights and obligations; the law which re lates to rights and

duties which give

rise to a cause of action. "Procedure," on the other hand, has been described by the cour t as follows: '[T]he mode or pr oceeding by which a legal right is enforced, as distingu ished from the law which gives or defines the right , a n d which by means of the proceeding, the court is to ad minis ter--the machinery, as distingu ished from its produc t; . . . including pleading, Process, evidence, and practice . . .. Practice [is] the form

. . . for the enforcem ent of righ ts 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.197 6)(quoting Jones v. Garrett , 386 P.2d 194, 198-99 (Kan.1963)) . The provision of t he new adoption law at issue creates a

nd defines a right of adopted persons whic h has not previouslyexisted

- -that is a right to unqua lified access to the

identity of their birthparents. As such , Section 36-1-127(c) of the Tennessee C

ode is a substantive chan ge in the law and not me rely a procedural or reme dial one.

The case of Anderson v. Memp

his Housing Authori

ty , 534 S.W.2d 1256 In analyzing the issue of retrospective legislating, the lower court adoptedthe threeprong approach f

ound in Ficarra v. Department of Regulatory Agencies , 849 P.2d 6, 15 (Colo.1993): [I]n determining whether a retroactive statute impairs or destroys veste d rights the most importantinquiries are (1 ) whether the pub lic interest is

advanced or retarded, (2) whether the retroactive provision gives effect to or defeats the bona fid e intentions or reasonable expectations of effected persons, and (3) whether the statute surprises persons who have long relied on a co

ntrary state -12- (Tenn. Ct. App. 1975), is analogous. That case involved an inv erse condemnation

law which, i n pre-amendment f orm, entitled land o

wners "to

recover in damages the value

of the land or rig ht taken, no more and n o less." Id. at 128. As amended, the law provided that the own er recover "for

greater and

a new and differen

t measure of damag

es than was previous

ly allow ed, viz. , attorney fees etc." Id. The court held that the Amendment "is on

e that does not merelyenlarge or affec

t a procedure for the

enforcement of a

n existing right, but

on the contrary,creates a new right of recovery theretofore nonexistent." Id. In the same man ner, we f

ind that Section 36-1- 127(c) does not mere ly 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 no

nexistent.
Though, under certain Te nnessee cases,the substantive nature of the law would suffice to support a

conclusion th at the l aw's retrospect ive application violates Article 1, § 20, we hold that the ultim ate issue is whether the retr oactive app lication

of this law will im

pair the rights veste

d in Plaintiffs. T

o r eiterate , vested rights have

been defined as those

"interests which it is proper f or the state to recognize and prote

ct and of whic

h the individual could not be deprived arbitrarily

witho ut in

justice." See Morris v. Gros s , 572 S.W.2d 902,

905 (Tenn. 1978). Additionally, our su preme court has foc

ussed on whether the retroactive

legislation deprived

a person of

his reasonable expe

ctations under the prior law. Ford Motor Co. v. Mo ulton , 511 S.W.2d 690, 696 (Tenn.1974).
Applying these standards to the case atbar, we find that the re trospective application

of Section 36-1-127(c

) does impair the ve sted rights of birth parents who surrendered their children for adoption under former law. Under the

prior law , these birth parents had a reasonable ex pectation that any ide

ntifyi n g inf ormationwould remain confi dential if they so desi

red. 6 While the DHSof the law.

See Doe v. Sundquist , 1997 WL 354786, at *9. Thoughwe do not adopt the Colorado standard as our own, we note

that numbers two and three embrace the same concern as our reasonable expectations inquiry. Where we disagre e is with the lower court's conclusion that there was no such expectation. -13- regulation

mandating that birth

parents be assured o

f the confidential asp

ects of the adoption-related services was merely a state regulation and only adopted in 1988, it is indicative of the expectation of conf

identiality prevale

ntunder th e prior law. The birth

mo ther plaintiffs all proclaim that they were assured confidentiality

and expected the same under that law. We find tha t this interest in the confidentiality o

f identifying inform

ation is a proper inte

rest for the state to recognize and protect. Life-changing decisions were made b as ed upon this expectation

and to now deprive th ose wh o relied upon their legitimate expectation under the

law would be to depr

ive them of a vested right.

Itis significant, as t

he complaint alleges,

that Plaintiffs did not

voluntarily release this infor

mation to the governme

ntbut rather were required to do so as

a c ondition to being able to u se the adoption machin ery exclusively ava

ilabl e from the state. In ret

urn for providing this informati on, these persons were assured that their privacy would be protec ted b y keeping their infor mation confidential except in the narrow, statutorily defined circumstances. The effect of the challenged statu

tes is, for all pra

ctical purposes, to

remove any restri

ction on access to the here

tofore confidentia

l information.

We find that the parties challeng ing the statutes have p resented compelling evidence depicting their reliance on the statute's conf identiality provisions a

nd the significant effec

ts that retroactive

ly changi ng t he rules would bring a bout. Constitutional analysis frequently requires courts to w

eigh competing rights and interests, but in the context of Tennessee Constitution article I, § 20, the

balance is always struck in f

avor of vested rights

.

We note tha t our ruling does not ext end to all informati

on contained in adoption records as only the i

dentifying informati

on of birth parents ha

s b ee n consistently

protected through out the years. Therefore, our holding with regard to Article 1, § 20 doe s not encompass the ado ptiv e parent pla

intiffs. Their redress is through the

legislative process

.-14- Plaintiffs present and the court below addresses issues of Right of Privacy, Equal Protection and Freedo m of Conscience. Since the foregoing issue of Retrospective

Legislation is dete

rminative we do not address those issues here.

Itshould benoted that the trial c ourt's memorandum

opinion cited certai

n affidavits as a

basis for its disposition of t he case. This w

ould indicate that the dismissal below was summar y judgment, Tenn. R. Civ. P. 56, i ns tead of Rule 12.02(6) grounds. Neverthe less, our resu

lt would be the same under either review.

The judgment of the trial court is therefore reversed, an d the cause is remanded to the tria

l court for further

proceedings.

_________________________________ WALTERW. BUSSART, S PECI AL JUDG

E

CONCUR:

______________________________________ HENRY F. TODD, PRESI DING JUDGE, M.S.

______________________________________ WILLIAM C. KOCH, JR., JUDGE