DOES 1, 2, 3, 4, 5, 6, AND 7 v. State
| Decision Date | 29 December 1999 |
| Citation | 993 P.2d 822,164 Or. App. 543 |
| Parties | Jane DOES 1, 2, 3, 4, 5, 6, and 7, Appellants, v. The STATE of Oregon; John A. Kitzhaber, Governor of Oregon; and Edward Johnson, State Registrar of the Center for Health Statistics in Oregon, Respondents, and Helen Hill, Curtis Endicott, Susan Updyke; and the Oregon Adoptive Rights Association, Intervenors-Respondents. |
| Court | Oregon Court of Appeals |
I. Franklin Hunsaker, Portland, argued the cause for appellants. With him on the briefs were Loren D. Podwill and Bullivant Houser Bailey, a professional corporation.
David Schuman, Deputy Attorney General, argued the cause for respondents. On the joint respondents' brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, Mary H. Williams, Assistant Solicitor General, and Brendan C. Dunn and Robert M. Atkinson, Assistant Attorneys General.
Thomas E. McDermott III, Portland, argued the cause for intervenor-respondents. With him on the joint respondents' brief was Roy Pulvers.
Jeffrey M. Batchelor, Jeffrey M. Batchelor, P.C., Michael P. Bentzen, Hughes & Bentzen, and David M. McConkie, Merrill F. Nelson and Kirton & McConkie filed a brief amicus curiae for National Council for Adoption.
Before De MUNIZ, Presiding Judge, and LINDER and BREWER, Judges.
De MUNIZ, P.J.
Plaintiffs appeal from a summary judgment in favor of defendants State of Oregon and various state officials in their action for declaratory and injunctive relief to have voter-enacted initiative Measure 58 (1998) declared invalid and to enjoin the state from implementing that measure. Under Measure 58, adopted people over the age of 21 may gain access to their original birth certificates and thus may determine the identities of their birth mothers. Plaintiffs are women who surrendered children for adoption in Oregon between the years 1960 and 1994.1 Intervenors include the Oregon Adoptive Rights Association, several adoptees (including the chief sponsor of Measure 58), and a birth mother who alleges that no promises of confidentiality were made when she surrendered a child for adoption in Oregon in 1967 and who desires contact with that child.
In this action, plaintiffs seek to prevent the disclosure of their children's birth certificates to the children they relinquished for adoption, arguing that Measure 58 violates the contracts clause of the state and federal constitutions and also unconstitutionally violates their rights to privacy under both constitutions. Each side moved for summary judgment, asserting that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. The trial court rejected plaintiffs' arguments and granted summary judgment in favor of defendants. For the reasons set forth below, we affirm.
Measure 58 provides:
In their second amended complaint filed in the trial court, plaintiffs sought to have the court declare Measure 58 unconstitutional and further sought to have the court enjoin defendants from implementing Measure 58. At the time of their initial filing, plaintiffs and the state defendants entered into a stipulation for issuance of a preliminary injunction restraining defendants and their agents from enforcing the provisions of Measure 58 until entry of the trial court judgment in this case.2 After the trial court entered judgment in defendants' favor, plaintiffs moved for a stay of judgment pending appeal pursuant to ORS 19.350, which the trial court denied. Plaintiffs then moved this court for a stay of judgment pending a decision on appeal, asserting that they were seeking invalidation of Measure 58 in this action. We expedited the appeal and granted plaintiffs' motion for a stay of judgment on the ground that the appeal was taken in good faith and not for purposes of delay, that the denial of a stay would result in harm to appellants and could eviscerate the subject matter of the appeal before a decision on the merits was possible. See generally ORS 19.350(3), (5) (setting forth factors to be considered in determining whether stay should be granted).
In the course of briefing the issues to this court, plaintiffs filed a reply brief that specifically disavowed any facial challenge to the constitutionality of Measure 58 and asserted that they were only making an as-applied challenge to the constitutionality of the law. Plaintiffs indicated in their reply brief, and further clarified during oral argument of this case, that they were claiming only that Measure 58 was unconstitutional as applied to the six plaintiffs and to other birth mothers who received similar assurances of confidentiality; plaintiffs conceded that the measure would not be unconstitutional as to other birth mothers, such as the intervenor birth mother who received no assurances of confidentiality and who desires contact with her adopted child. See generally Advocates for Effective Regulation v. City of Eugene, 160 Or.App. 292, 299, 981 P.2d 368 (1999) ().
Given plaintiffs' concession that Measure 58 is capable of at least some constitutional applications, the remedy of invalidation of the statute sought by plaintiffs in this action and the temporary remedy imposed by the stay of the judgment are not appropriate. Plaintiffs have sought invalidation of Measure 58, and the stay entered by this court enjoins any application of Measure 58 whatsoever. "It may be premised that injunction is a proper remedy to prevent enforcement of void legislation." Kroner v. City of Portland, 116 Or. 141, 150, 240 P. 536 (1925) (citing cases). It does not follow, however, that an injunction preventing all enforcement of legislation is a proper remedy when the plaintiffs do not contend that the legislation is void but contend only that the legislation, although constitutional as applied to others, would be unconstitutional as applied to them. See generally Meltebeke v. Bureau of Labor and Industries, 120 Or.App. 273, 280, 852 P.2d 859 (1993), aff'd 322 Or. 132, 903 P.2d 351 (1995) (). Plaintiffs have presented no ground for enjoining enforcement of Measure 58 in its entirety, as they are not asserting that it is facially unconstitutional. Given plaintiffs' position, and without reference to the merits of their as-applied constitutional challenges to the measure, we conclude that the stay of judgment entered by this court preventing Measure 58 from going into effect must be lifted immediately, as it grants more relief than plaintiffs would be entitled to, even if they prevailed on each of their constitutional arguments.
However, the fact that plaintiffs have requested relief to which they are not entitled does not defeat their claim. A prayer for relief is not a part of the complaint. Finch v. Miller, Credithrift, 271 Or. 271, 275, 531 P.2d 892 (1975). Moreover, "a prayer for the wrong relief following a pleading that sets forth facts entitling the pleader to some relief does not operate to deny the proper relief[.]" Wright v. Morton, 125 Or. 563, 569, 267 P. 818 (1928). Although plaintiffs sought improperly to enjoin enforcement of Measure 58 in its entirety, they also sought "other and further relief as the Court deems just and equitable." We, therefore, address plaintiffs' as-applied constitutional claims, because other relief, such as more limited injunctive relief, might be appropriate should plaintiffs prevail.
We turn to plaintiffs' claims under the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (). Plaintiffs argue that the provisions of Measure 58 that would permit their adopted children to discover plaintiffs' identities unconstitutionally impair the obligations of plaintiffs' adoption contracts in violation of Article I, section 21, of the Oregon Constitution. The trial court rejected plaintiffs' argument on the ground that Oregon laws before the enactment of Measure 58 did not provide the assurances of absolute confidentiality that plaintiffs now assert were a part of their adoption contracts.
Article I, section 21, of the Oregon Constitution provides, in part, that "no law * * * impairing the obligation of contracts shall ever be passed." Plaintiffs assert that they were promised by staff of various private entities—such as hospitals and adoption agencies that facilitated the adoptions—that, under Oregon law, the identities of birth mothers who surrendered their children for adoption would be kept confidential. Plaintiffs assert that the state, through its agency the State Office for Services to Children and Families (SOSCF, formerly Children's Services Division or CSD), was, in effect, a party to those adoption contracts, given its role in regulating adoptions and licensing adoption agencies. They further assert that the individuals, such as physicians and social service workers who made representations to them that their identities would be kept confidential, acted as agents of the state in doing so. Plaintiffs argue that the express promises of confidentiality that they received, coupled with Oregon statutes that, at the time of...
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