STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 30, 1970

William D. Johnson
Director, Division of Vital Statistics
State Department of Health
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-49

Original birth certificates of adoptive child. Circuit Court or District County Court can lawfully order Director of Vital Statistics to make copies thereof and deliver to person designated by the Court in such order. (SDCL 34-25-16)

Dear Mr. Johnson:

You have requested my opinion in answer to this question:

1. In view of the provisions of SDCL 34-25-16, is it permissible for a circuit court or a district county court to direct the Director of Vital Statistics to furnish a copy, certified or otherwise, of the "original certificate of birth" to a person designated by the court to receive a copy of such instrument?

2. Is it lawful for the Director of Vital Statistics to honor this request and furnish a copy, certified or otherwise of such "original certificate of birth" to the individual named in such court order?

I will not set forth the entire provisions of SDCL 34-25-16, but merely state that this statute provides that when the Director of Vital Statistics is advised of the adoption of any child whose birth was previously registered, that me may cause a new record of birth to be issued for such child in his adoptive name, showing that the adoptive parents are the parents of such, child. It further provides for the sealing of such "original certificates" so that such are not subject to indiscriminate inspection by the general public.

There should be no question that the term "original certificate" refers to the original certificate of birth, and not to the new certificate of birth that is issued subsequent to the adoption proceeding. Your question is raised because of the following language in the statute:

The original certificate of birth with the decree of the court as to the adoption shall be sealed and shall remain a part of the records of the division of vital statistics and shall be opened only upon demand of said child when he reaches maturity, or his adopting parents, or by the order of a court of competent jurisdiction. (The statute then provides for the sealing and "opening" of such records, and the abstract thereof held in the files of the local registrars. Emphasis has been added to the statute.)

It is apparent to me, in recognition of the settled canon of statutory interpretation, that the Legislature is never presumed to have intended that a useless act be performed, that by the use of the term "opened" in relation to these sealed records on behalf of the adoptive child upon reaching maturity, the adoptive parents, or by an order of the court, that the Legislature thereupon authorized such person to inspect such records. To limit this legislative direction to mean that the Director of Vital Statistics, or his deputy, can open such files, but of course, no one else can inspect and scrutinize such records, is to presume the Legislature intended a useless act.

However, admitting that the term "open" includes a right of inspection, the problem you have presented is whether or not such term also includes, by implication, the preparation of a "copy" of such instrument by the Director of Vital Statistics.

You, of course, have not raised the question of whether or not, in the absence of a court order, directing such copying of such records, you could voluntarily furnish a copy of such records to those persons who can qualify to have the files "opened." I do not need to answer this question, for its answer in no way involves the exact question you have submitted.

The first question presented is as to whether or not the circuit court or district county court may, by order, direct you to make copies, certified or otherwise, of such original certificate of birth, which was superseded by a new birth certificate issued in the adoptive name. It is my opinion that if this question is affirmatively answered, the answer to your second question (whether or not the Director of Vital Statistics can furnish such copy in pursuance to court order) likewise must be answered in the AFFIRMATIVE.

In Re Loevinger's Estate, 40 SD 450, 167 NW 726, our Supreme Court held that all courts of records in South Dakota have certain inherent powers. These powers do not arise by virtue of statute, but rather exist in such courts of record, because such is a part of the judicial system of South Dakota. Our court further held, in accord with the overwhelming opinion in this county, in Bandy v. Michelson, 73 SD 485, 44 NW (2) 341 that the Legislature cannot limit or restrict the powers granted the judiciary by the Constitution.

Many persons are proud of their lineage. In many judicial situations lineage is of the utmost importance to determine a particular question of law. It is undisputed that a birth certificate, issued after an adoption, in the name of an adoptive child, with the adoptive parents named as the parents of such child, does not in truth set forth the lineage of such child. The truth of such lineage can be proven only by the direct testimony of the actual parents of such child, or from the original birth certificate issued upon the birth of such child.

It must be presumed that when a court-either circuit or district county court-enters an order directing the Director of Vital Statistics of the State of South Dakota to furnish a copy of such original and sealed certificate of birth, that the court is not motivated for purposes of inquisitiveness, or curiousity, but rather is motivated for the purpose of having the true parentage or lineage disclosed for legitimate purposes.

There can be no question that in litigation, which involves the proof of actual parentage of an adopted child, that the court has the right to learn the truth as to the real parents of an adoptive child. To construe SDCL 34-25-16 to mean that a court by order cannot get a copy of such record, because the Legislature does not allow it, would amount to an encroachment upon the jurisdictional authority of the court, which is condemned by our Constitution as void.

I must answer question No. 1 in the AFFIRMATIVE. It follows, that if such an order to make a copy of such sealed records is served upon you, you have no legal right to rely on the statute quoted as grounds for refusing to comply with such order.

Respectfully submitted,

Gordon Mydland
Attorney General