decided: June 22, 1979.
ROBERT C. RHODES, APPELLANT,
LOUIS D. LAURINO, QUEENS COUNTY SURROGATE, AND DOROTHY M. DOOLEY, DIRECTOR, ADOPTION DEPARTMENT, NEW YORK FOUNDLING HOSPITAL, APPELLEES.
Appeal from a judgment of Judge Mark A. Costantino of the United States District Court for the Eastern District of New York refusing to declare unconstitutional New York Domestic Relations Law § 114 and dismissing appellant's § 1983 action seeking the medical history of his natural parents and forebears. Held, the case as to appellant Laurino is not ripe for review because appellant has not yet obtained a ruling on his petition from the New York Surrogate's Court, and the complaint does not state a cause of action against defendant Dooley.
Before Lumbard and Oakes, Circuit Judges, and Brieant, District judge.*fn*
Author: Per Curiam
This appeal, pro se, is from a judgment denying a declaration of unconstitutionality of Section 114 of the New York Domestic Relations Law*fn1 on its face and as applied. Appellant is an adult adoptee seeking to obtain the medical history of his natural parents and their forebears. Judgment dismissing his complaint was granted by the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge. Rhodes v. Laurino, 444 F. Supp. 170 (E.D.N.Y.1978). We have upheld the statute against a broadbased attack on its facial validity in Alma Society v. Mellon, 601 F.2d 1225, handed down herewith. We affirm Judge Costantino's opinion dismissing the complaint insofar as it seeks to obtain a ruling as to unconstitutionality as applied.
The statute in question permits an adoptee to obtain access to his sealed adoption records "for good cause shown." Appellant wrote to the Deputy Chief Clerk of the Queens County Surrogate's Court requesting to be apprised of the proper procedure to obtain information about his natural parents; the clerk advised that medical information Could be disclosed upon evidence from competent medical authority that it was Urgently needed. Appellant submitted a letter from a doctor to the effect that "some ailments (e. g. cardiac) do not permit for court petitions upon an attack's unexpected occurrence, and any time delay might well prove fatal or seriously disabling to the patient." Someone in the Surrogate's Court told appellant that the doctor's letter was insufficient. He then requested advice as to how he "might seek review of the Surrogate's administrative decision," and someone suggested that he obtain counsel. Finally, after unsuccessfully seeking to obtain the desired information from the records of the hospital where he was born,*fn2 appellant filed a petition with the Surrogate's Court on December 20, 1976. The petition, however, was returned to him without a hearing and with a cover letter from a law assistant stating that it did not meet the "good cause" requirement of the statute. Appellant then brought suit in federal court.
We recognize appellant's impatience with a system that seemingly permits law assistants to the Surrogate to decide what does or does not constitute "good cause," but we must find that the case is not ripe because the Surrogate's Court itself has not determined the issue adversely to him.*fn3 Appellant should file his petition again and seek a hearing thereon. If the court itself refuses to hear him, Mendez v. Heller, 530 F.2d 457, 461 (2d Cir. 1976) (Oakes, J., concurring opinion), or its clerical or legal personnel continue to refuse to accept his petition for filing, Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), a complaint such as the one now filed may then state a federal claim that is ripe for relief.*fn4 See also Berrigan v. Norton, 451 F.2d 790 (2d Cir. 1971) (prisoner attempting to publish a sermon did not present a justiciable case or controversy absent a showing of rejection by the warden).
Accordingly, we affirm the judgment below.