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 )
                                    )     FILED
Children's Services for the         )      August 24, 1998
State of Tennessee,                 )
                                    )     Cecil W. Crowson
       Defendants/Appellees.        )    Appellate Court Clerk
                                    )


                   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
                                     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-placing agency3 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


       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 World Ministries, Inc. is a non-profit ministry licensed by the State of Tennessee
as a child-placing agency.


                                              -2-
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)).


                                        -3-
       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

       4
         Amici 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-
      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.


                                       -5-
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.

                                        -6-
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


                                          -7-
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: ' . . .

                                         -8-
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

                                        -9-
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

                                        -10-
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



       5
         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
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.

                                            -11-
(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


       6
        In analyzing the issue of retrospective legislating, the lower court adopted the three-
prong 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

                                             -12-
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.


        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 our reasonable
expectations inquiry. Where we disagree is with the lower court's conclusion that there was
no such expectation.

                                           -13-
      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.


______________________________________
WILLIAM C. KOCH, JR., JUDGE




                                       -14-
