IN RE THE NAME CHANGE OF JANE DOE ( 2020 )

FILED
May 18 2020, 10:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Kathleen Cullum Thomas M. Fisher
Indianapolis, Indiana Solicitor General
Megan Stuart Aaron T. Craft
Bloomington, Indiana Section Chief, Civil Appeals
Barbara J. Baird Kian J. Hudson
Indianapolis, Indiana Deputy Solicitor General
Lynly S. Egyes Benjamin M. L. Jones
Brooklyn, New York Julia C. Payne
Deputy Attorneys General
Shawn Meerkamper Indianapolis, Indiana
Oakland, California
Andres R. Holguin-Flores
Thomas A. Saenz
Los Angeles, California
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE NAME CHANGE May 18, 2020
OF JANE DOE, et al., Court of Appeals Case No.
Appellants-Petitioners. 19A-MI-2166
Appeal from the Marion Circuit
Court
The Honorable Sheryl Lynch,
Judge
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Trial Court Cause Nos.
49C01-1903-MI-8545, 49C01-1812-
MI-48558
Altice, Judge.
Case Summary
[1] Jane Doe and R.A.C. (collectively, Petitioners) each filed a petition with the
trial court to change their legal name pursuant to Ind. Code chapter 34-28-2. In
each case, the trial court found that the petition was made in good faith and not
for fraudulent or unlawful purposes. The court indicated that it could easily
grant the petitions if only Petitioners were United States citizens. Believing it
was constrained by I.C. § 34-28-2-2.5(a)(5), however, the trial court denied the
petitions.
[2] In this consolidated appeal, Petitioners argue that the trial court erred when it
interpreted I.C. § 34-28-2-2.5(a)(5) to require proof of citizenship as a
prerequisite to obtaining a name change. They direct us to In re Resnover, 979
N.E.2d 668 (Ind. Ct. App. 2012), in which another panel of this court held that
the language of subsection 2.5(a) carries directory, rather than mandatory,
intent and, thus, where a document on the statutory list “cannot be submitted to
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the court, the petitioner is relieved from the necessity to produce the
documents.” Id. at 676. Further, Petitioners contend that the trial court’s
interpretation renders the statute unconstitutional on several grounds, including
equal protection.
[3] The State, upon our invitation, intervened in this appeal to address the
constitutionality of I.C. § 34-28-2-2.5(a)(5), which the State argues
unambiguously requires proof of United States citizenship. While the State
contends that the statute is facially valid, it concedes that as a matter of equal
protection, “the citizenship requirement is unconstitutional as applied to these
Petitioners because heightened scrutiny applies to legal permanent residents and
childhood arrivals.” Appellee’s Brief at 12.
[4] Constitutional issues abound here but, counseled by the doctrine of judicial
restraint, we do not reach them. Consistent with caselaw and the framework of
the name change statutes, we do not interpret I.C. § 34-28-2-2.5(a)(5) to require
that a petitioner be a United States citizen in order to obtain a statutory name
change.
[5] We reverse and remand.
Facts & Procedural History
[6] Petitioners are transgender men who were born in Mexico and brought to the
United States by their respective families around the age of five. Both are
residents of Marion County, Indiana, but not United States citizens. R.A.C.
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received from the United States Department of Homeland Security a grant of
deferred action under the Deferred Action for Childhood Arrivals (DACA)
initiative and has a pending petition for a United States visa. Doe also received
DACA status and then, in 2016, became a lawful permanent resident of the
United States.
[7] R.A.C. and Doe individually filed with the Marion Circuit Court verified
petitions for change of name on December 7, 2018 and March 1, 2019,
respectively. They also provided supporting briefs regarding the
constitutionality and application of I.C. § 34-28-2-2.5(a)(5).
[8] The trial court heard Doe’s amended petition on May 15, 2019. At the
conclusion of the evidentiary hearing, the court indicated that it found Doe’s
testimony sincere, truthful, and extremely credible. The court commended
counsel on the thorough briefing of the legal issues at hand – both statutory and
constitutional – and then took the matter under advisement.
[9] On July 10, 2019, the trial court heard R.A.C.’s petition. Based on the
testimony and documentary evidence submitted in support of the petition, the
trial court indicated at the conclusion of the hearing that R.A.C. would be
undoubtably entitled to a legal name change if he were a United States citizen.
The sole issue left for the trial court was the effect of R.A.C.’s inability to
provide proof of citizenship. The court took the legal issue under advisement.
[10] The trial court issued orders in August 2019 denying the petitions for name
change based on each petitioner’s inability to provide proof of United States
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citizenship under I.C. § 34-28-2-2.5(a)(5). Doe’s order included, among others,
the following findings:
13. Petitioner presented overwhelming, compelling testimony
regarding numerous incidents where his lack of a name change
… has been detrimental to Petitioner and his wife and child.
Petitioner’s testimony also met the burden of harm to Petitioner
as a transgender male.
14. The Court finds Petitioner’s request for the change of name
… is made in good faith, and not made for fraudulent or
unlawful purposes.
****
16. The Court finds that if the Petitioner were a United States
Citizen, the Court could easily with DACA status grant the
request for Name Change.
Appendix at 12-13. R.A.C.’s order contained similar findings. However,
because the trial court concluded that I.C. § 34-28-2-2.5(a)(5) requires proof of
United States citizenship and determined that it could not render the
requirement unconstitutional, the court denied the requested name changes.
[11] Petitioners each timely appealed. On November 22, 2019, the appeals were
consolidated pursuant to Ind. Appellate Rule 38(B). Petitioners then filed a
joint appellate brief and appendix, in which they argued that they are statutorily
entitled to a name change regardless of their citizenship status and that the trial
court’s interpretation of I.C. § 34-28-2-2.5(a)(5) would render the statute
unconstitutional on several grounds. On February 18, 2020, pursuant to Ind.
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Code § 34-33.1-1-1, this court issued an order notifying the Attorney General
that the constitutionality of a statute had been called into question and granting
the Attorney General permission to intervene on behalf of the State as an
appellee. The State intervened and timely filed a brief, in which it argued that
the statutory provision at issue is facially constitutional but unconstitutional as
applied. Petitioners filed a reply brief, arguing that this court can and should
construe the statute to avoid unconstitutional results.
Standard of Review
[12] Statutes are presumptively constitutional and, therefore, we must resolve all
reasonable doubts concerning a statute in favor of constitutionality. State v.
Thakar, 82 N.E.3d 257, 259 (Ind. 2017). The doctrine of judicial restraint
requires a reviewing court to ascertain whether a construction of the statute at
issue is “fairly possible” such that a constitutional question may be avoided.
Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n,
695 N.E.2d 99, 107 (Ind. 1998) (“constitutional issues are to be avoided as long
as there are potentially dispositive statutory or common law issues still alive”).
[13] Statutory interpretation is a question of law and is subject to de novo review on
appeal. ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195
(Ind. 2016).
Our first task when interpreting a statute is to give its words their
plain meaning and consider the structure of the statute as a
whole. West v. Office of Indiana Sec’y of State, 54 N.E.3d 349, 353
(Ind. 2016). We “avoid interpretations that depend on selective
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reading of individual words that lead to irrational and
disharmonizing results.” Id. at 355 (internal quotation omitted).
As we interpret the statute, we are mindful of both “what it ‘does
say’ and what it ‘does not say.’” Day v. State, 57 N.E.3d 809, 812
(Ind. 2016) (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.
2003)). To the extent there is an ambiguity, we determine and
give effect to the intent of the legislature as best it can be
ascertained. Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind. 2014).
“[W]e do not presume that the Legislature intended language
used in a statute to be applied illogically or to bring about an
unjust or absurd result.” Anderson v. Gaudin, 42 N.E.3d 82, 85
(Ind. 2015) (internal quotation omitted).
Id. at 1195-96. Further, statutes relating to the same general subject matter
“should be construed together so as to produce a harmonious statutory
scheme.” Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009).
Discussion & Decision
[14] I.C. § 34-28-2-2.5(a) provides:
If a person petitioning for a change of name under this chapter is
at least seventeen (17) years of age, the person’s petition must
include at least the following information:
(1) The person’s date of birth.
(2) The person’s current:
(A) residence address; and
(B) if different than the person’s residence address,
mailing address.
(3) The person’s valid:
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(A) Indiana driver’s license number;
(B) Indiana identification card (as described in IC 9-
24-16) number; or
(C) Indiana photo exempt identification card (as
described in IC 9-24-16.5) number.
(4) A list of all previous names used by the person.
(5) Proof that the person is a United States citizen.
(6) A statement concerning whether the person holds a
valid United States passport.
(7) A description of all judgments of criminal conviction of
a felony under the laws of any state or the United States
that have been entered against the person.
(Emphasis supplied.). At first blush, the statute appears to require proof of
United States citizenship before a name change may be granted. Such an
interpretation, however, not only leads to constitutional problems – as
acknowledged by the State – but is counter to the history of liberally allowing
nonfraudulent name changes in Indiana and the overall framework of the name
change statutes.
[15] At common law, a natural person has long been permitted to change his or her
name without resort to any legal proceedings, as long as the name change does
not interfere with the rights of others and is not done for a fraudulent purpose.
See Leone v. Commissioner, 933 N.E.2d 1244, 1252 (Ind. 2010); Petition of Hauptly,
312 N.E.2d 857, 859-60 (Ind. 1974); Resnover, 979 N.E.2d at 672.
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[16] In 1852, the Indiana legislature statutorily authorized courts to effect a change
of name. Hauptly, 312 N.E.2d at 859. Describing the statute as “quite simple”,
our Supreme Court held that the statutory procedure “merely provide[d] for an
orderly record of the change of name in order to avoid future confusion” and
did not abrogate – but rather supplemented – the common law. Id.; see also
Leone, 933 N.E.2d at 1253. In Hauptly, the Court reversed the denial of a name
change for a married woman who wished to change from her married name to
her maiden name, explaining:
[A]ny member of our society who wishes to make a public legal
record of a name change[] may take advantage of the Indiana
statute. The only duty of the trial court upon the filing of such a
petition is to determine that there is no fraudulent intent
involved. Once having so found, we hold that it is an abuse of
judicial discretion to deny any application for a change of name
under the statute.
312 N.E.2d at 860.
[17] Over forty years later, and after amendments to the name change statutes in
2010 that included the addition of section 2.5, the Court reiterated that “Hauptly
means that Indiana courts must grant a name change where no evidence of
fraud exists” and indicated that “under the common law only a statutorily
authorized court order gives legal sanction to a name change.” Leone, 933
N.E.2d at 1253, 1254. In discussing common law and statutory name changes,
the Court observed:
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While the courts have a unique power to certify a name change,
Hoosiers still may refer to themselves by any name they like.
They may not, however, demand that government agencies begin
using their new names without a court order. This dual structure
recognizes the reality that names serve multiple purposes, both
private and public. Among the private purposes are self-
expression and identity, which are served by a person’s ability to
change one’s name at will in social and informal settings.
Among the public purposes are identification and
communication, which are served by the State’s ability to tether
one’s name to a fixed identifier.
The modern tendency toward use of government-issued
identification in both private and public settings may shrink the
field governed by the common law, but both common law and
statutory processes have long coexisted with respect to names, as
they do in other fields of law. Statutes obliging citizens to engage
in some formality when they invoke government processes by
applying for benefits or identification cards neither obliterate
common-law usage nor are they driven by them.
Id. at 1254 (citations omitted). The Court determined that petitioning an
Indiana court to obtain a statutory name change is an “especially light [burden]
considering Hauptly’s requirement that a court recognize by order any
nonfraudulent name change.” Leone, 933 N.E.2d at 1257-58. Further, the
Court noted, “The paperwork required for a name change is similarly light.”
Id. at 1258 n.14.
[18] The simplicity of obtaining a name change, as discussed by the Supreme Court
in Leone and Hauptly, is reflected in I.C. § 34-28-2-1, which broadly provides:
“Except as provided in section 1.5 of this chapter, the circuit courts, superior
courts, and probate courts in Indiana may change the names of natural persons
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on application by petition.” The only exceptions listed in the succeeding
statutory section are if the person “is confined to a department of correction
facility” or “is a lifetime sex or violent offender.” I.C. § 34-28-2-1.5(b). Doe
and R.A.C. do not fall into either of these specific categories.
[19] We agree with Petitioners that had the legislature intended to prohibit a third
class of natural persons from being able to petition for a name change – namely,
those who are not United States citizens – the above provisions make clear that
the exception would be listed in section 1.5 of the chapter. Indeed, under the
well-established doctrine of expressio unius est exclusio alterius, when items are
specified or enumerated in a statute then, by implication, other items not so
specified or enumerated are excluded. See A.A. v. Eskenazi Health/Midtown
CMHC, 97 N.E.3d 606, 614 (Ind. 2018); Campbell v. Eary, 132 N.E.3d 413, 416
(Ind. Ct. App. 2019).
[20] Contrary to the plain language of sections 1 and 1.5 of the name change
statutes, the trial court’s interpretation of section 2.5 creates an entirely new
category of individuals not entitled to petition for a name change. This
categorical exclusion of non-U.S. citizens, per the trial court’s interpretation, is
hidden in subsection (a)(5) of I.C. § 34-28-2-2.5, a statute that sets out
information that must be included in the petition.
[21] In Resnover, this court directly addressed I.C. § 34-28-2-2.5 with respect to a
petitioner, Herron, who could not provide one of the enumerated items of
information listed therein. There, Herron did not have a valid Indiana driver’s
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license (or identification card) number as required by subsection (a)(3) of the
statute. In interpreting section 2.5, the majority read it in conjunction with its
preceding section 2: 1
Seizing on the “if applicable” language of I.C. § 34-28-2-2,
Herron asserts that this language should be implicitly read in
conjunction with I.C. § 34-28-2-2.5, which is a subpart of I.C. §
34-28-2-2. As such, he maintains that a petitioner, who is at least
seventeen years of age, should only have to include his driver’s
license number or identification card number with his petition for
name change, if it is applicable. The State, as Amicus, opposes
this interpretation, contending that it would “gut the statute and
improperly make the requirements of subsection 2.5 merely
discretionary.” (Amicus Br. p. 9).
The interrelationship between Indiana Code section 34-28-2-2
and its subsection 2.5, indicates that when filing a petition for
name change, the petitioner must “if applicable, include the
information required by section 2.5 of this chapter.” See I.C. §
34-28-2-2. Mindful to give all words included in the statute their
plain and ordinary meaning, we cannot but interpret the “if
applicable” language to indicate that if the required
documentation enumerated in subsection 2.5 cannot be
1
I.C. § 34-28-2-2(a) provides:
The petition described in section 1 of this chapter must:
(1) if applicable, include the information required by section 2.5 of this chapter;
(2) in the case of a petition filed by a person described in section 2.5 of this chapter, be
subscribed and sworn to (or affirmed):
(A) under the penalties of perjury; and
(B) before a notary public or other person authorized to administer oaths; and
(3) be filed with the circuit court, superior court, or probate court of the county in which the
person resides.
(Emphasis supplied.). Subsections (b) and (c) address procedures related to changing the name of a minor.
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submitted to the court, the petitioner is relieved from the
necessity to produce the documents. Construing the statute
otherwise would negate the “if applicable” language in I.C. § 34-
28-2-2.
Although Section 2.5 propones the mandatory language that the
petition “shall” include these documents, we are mindful that
“[w]hen the word ‘shall’ appears in a statute, it is construed as
mandatory rather than directory unless it appears clear from the
context or the purpose of the statute that the legislature intended
a different meaning.” United Rural Elec. Membership Corp. v.
Indiana & Michigan Elec. Co., 549 N.E.2d 1019, 1022 (Ind. 1990).
This is one of the rare instances where the Legislature intended a
directory language….
In sum, today we hold that to effect a name change, a petitioner
must submit with the petition for a name change the documents
requested in I.C. § 34-28-2-2.5 – including a driver’s license
number or identification card number – if applicable. To be sure,
although we have decided that the language of subsection 2.5
does not carry a mandate, but rather a directory intent, the trial
court is still obliged to discern the absence of a fraudulent
purpose prior to granting a petitioner’s name change.
Resnover, 979 N.E.2d at 675-76.
[22] Judge Crone argued in dissent that the “if applicable” language of section I.C. §
34-28-2-2(a)(1) plainly “refers to the age requirement of Indiana Code Section
34-28-2-2.5(a) and not to the information required by that statute.” Resnover,
979 N.E.2d at 677 (J. Crone, concurring in part and dissenting in part). In
other words, he reasoned, if a petitioner is at least seventeen years old, then
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section 2.5 is applicable and the petition must include all the information required
by that statute.
[23] While Judge Crone’s analysis is appealing, we cannot say that the Resnover
majority’s opposing interpretation of the statute is unreasonable. And adopting
Resonver’s construction of I.C. § 34-28-2-2.5(a), which we do, allows us to avoid
addressing the constitutional questions that arise if United States citizenship is
read to be a (veiled) requirement for petitioning for a name change.
[24] As set out in full above, I.C. § 34-28-2-2.5(a) provides a list of information to be
submitted with a name change petition for an individual who is at least
seventeen years of age. We interpret this provision as requiring submission of
the enumerated information whenever possible. Where a petitioner is unable to
provide certain information, however, the petitioner is relieved from the
necessity to produce it. For example, a homeless person is not precluded from
seeking a name change simply because they cannot provide a current address as
required by subsection (a)(2). Similarly, here, Petitioners are unable to provide
proof that they are United States citizens. Therefore, they are absolved of
providing such proof.
[25] The absence of any of the information required by I.C. § 34-28-2-2.5(a) will
certainly be apparent to the trial court upon review of the petition, and we
encourage a petitioner to include in the petition an explanation of why he or
she cannot provide certain information. For example, in this case, Doe’s
petition set out that he “is not a U.S. Citizen but was granted asylum in the
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United States in 2015 because he is transgender and was granted permanent
residency in 2016.” Appendix at 19. A trial court, of course, should address any
missing information at the hearing on the petition.
[26] Ultimately, the task of the trial court is to consider all the testimony,
documentary evidence, and information before it, including any lack of
information. As long as the petitioner, a natural person at least seventeen years
old and not subject to the specific exclusions in I.C. § 34-28-2-1.5, establishes
that the name change is not being sought for fraudulent purposes, the trial court
is required to recognize the name change.2 See Hauptly, 312 N.E.2d at 860; see
also Leone, 933 N.E.2d at 1254.
[27] In this case, the trial court made abundantly clear its finding that Petitioners
were each seeking a name change in good faith and not for fraudulent or
unlawful purposes. The trial court indicated that it could easily grant the
petitions if it were not for the citizenship requirement that it believed existed in
subsection (a)(5) of I.C. § 34-28-2-2.5. Having concluded that the applicable
statutes do not require United States citizenship in order to obtain a name
2
There are also procedural notice and publication requirements set out in the name change statutes that are
not at issue in this case. Here, the trial court properly sealed the records and waived the publication of notice
requirements pursuant to Ind. Administrative Rule 9. Cf. In re A.L., 81 N.E.3d 283, 291 (Ind. Ct. App 2017)
(where transgender petitioner “established that publication of notice of his petition for a name change would
create a significant risk of substantial harm to him[,] … the trial court should have granted his requests to seal
the record and waive publication”).
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change, we remand with instructions for the trial court to grant Petitioners’
respective petitions for a name change.
[28] Judgment reversed and remanded.
Robb, J. and Bradford, C.J., concur.
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