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November 2, 1978

Irving MELLON, Director of Vital Records, City of New York, et al., Defendants

The opinion of the court was delivered by: POLLACK


The defendants have moved to dismiss the amended complaint herein or in the alternative to abstain from decision until the statutes are interpreted by the state court. For reasons given hereafter, the suit will be dismissed.

 The plaintiffs are adults who were adopted as children and now seek access to their original birth certificates, the Court records in their adoption proceedings, and the records of any private agencies involved in their adoptions.

 Various New York statutes require that these records be sealed and that access to them be granted only by Court order. Public Health Law, Section 4138; New York City Administrative Code, Section 567-2.0 (original birth certificates); Domestic Relations Law, Section 114 (court records); Social Services Law, Section 372 (agency records).

 These statutes are quoted by the plaintiffs at pages 8 to 14 of the amended complaint. Domestic Relations Law, Section 114, in particular requires that an order allowing access to Court records may be granted "on good cause shown."

 So far as the Court can determine only one plaintiff, Maxtone-Graham, applied to the state courts for access to her records, which was granted in part.

 The defendants are municipal officials who have custody of the original birth certificates of the plaintiffs; Surrogates of the counties in which twelve of the plaintiffs were adopted and in which the Court records in their adoption proceedings are now kept under seal; and five private agencies that handled the adoptions of fourteen of the plaintiffs and that now keep their records of these adoptions under seal.

 The plaintiffs argue that adult adoptees should be given access to the records of their adoptions with no showing of cause whatsoever. The present system of requiring a showing of cause and a Court order to gain access, the plaintiffs say, leads to psychological trauma, risk to health due to ignorance of the medical history of the adoptee and his natural ancestors, danger of incest, and a burden on the free exercise of the adoptee's religion.

 For these reasons, the plaintiffs urge that the New York statutes violate the First, Fourth, Ninth, Thirteenth and Fourteenth Amendments to the Constitution of the United States. The plaintiffs therefore ask that the Court declare these statutes unconstitutional and enjoin their enforcement against adult adoptees.

 There are some threshold procedural questions to be dealt with before the merits of the claims are reached.

 1. Certain defendants argue that the principles of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), require that the complaint be dismissed. The plaintiffs counter that Younger applies only when state proceedings in the matter are pending.

 The plaintiffs' argument is correct. The Supreme Court wrote in its most recent case construing Younger that its principles were involved "when litigation between the same parties and raising the same issues is or apparently soon will be pending in a State Court." Trainor v. Hernandez, 431 U.S. 434, 440, 97 S. Ct. 1911, 1916, 52 L. Ed. 2d 486 (1977). See also Maher v. Doe, 432 U.S. 526, 527, 97 S. Ct. 2474, 2475, 53 L. Ed. 2d 534 (1977) (per curiam). That case was remanded to apply the Younger doctrine "if a relevant State proceeding was pending." In two of the three cases in which the defendants say that Younger was applied where no State proceeding was pending, a State proceeding was indeed pending. Schachter v. Whalen, 445 F. Supp. 1376 (S.D.N.Y.1978) (pending administrative proceeding); Merrick v. Merrick, 441 F. Supp. 143 (S.D.N.Y.1977) (pending child-support action). In the third case, Williams v. Williams, 532 F.2d 120 (8th Cir. 1976), the plaintiff sued a state court judge and sought a declaration that a judgment entered by that judge was unconstitutional and an injunction against its enforcement. The Eighth Circuit held that Younger required dismissal because the judgment remained open to collateral attack in state court. Even if Williams was a proper extension of Younger, it does not apply here because no state judgment has been entered.

 2. It is urged that Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) applies herein. This involves an inquiry focused on the possibility that the state courts may interpret a challenged state statute so as to eliminate or at least alter materially the constitutional question presented.

 The defendants argue that if the plaintiffs applied to the state courts for access to their records, those Courts might construe "good cause" in a way that would allow the plaintiffs to see their records, and therefore that this Court should abstain from deciding the constitutional issues raised by the complaint. In this the defendants rely on Yesterday's Children v. Kennedy, 569 F.2d 431 (7th Cir. 1977), in which adult adoptees attacked two Illinois statutes that require a Court order for the release of adoption records and original birth certificates. The Seventh Circuit understood the complaint to allege that these statutes set too high a standard of cause for release of the records to adult adoptees. The Court abstained because the two statutes had been ...

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