In re Change of Name: Salazar , 2022 NV 69 ( 2022 )

138 Nev., Advance Opinion 671
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER FOR CHANGE OF No. 82667
NAME AS TO: ANTHONY ROY
SALAZAR.
ANTHONY ROY SALAZAR,
Appellant.
EL:
Appeal from a district court order dismissing a petition for adult
name change. Eighth Judicial District Court, Family Division, Clark
County; Denise L. Gentile, Judge.
Reversed and remanded.
McLetchie Law and Margaret A. McLetchie, Dayvid J. Figler, and Leo S.
Wolpert, Las Vegas,
for Appellant.
BEFORE THE SUPREME COURT, HARDESTY, STIGLICH, and
HERNDON, JJ.
OPINION
By the Court, HARDESTY, J.:
In this opinion, we consider the district court's dismissal of a
petition for an adult narne change. NRS 41.270 allows "[a]ny natural
person, except an unemancipated minor, desiring to have his or her name
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changed" to file a petition to do so with the district court. The petition must
state "whether the applicant has been convicted of a felony and include a
statement signed under penalty of perjury that the applicant is not
changing his or her name for a fraudulent purpose." Id. Publication of
notice of the petition is required in some circumstances, NRS 41.280, and if
no written objection to the petition is filed within ten days, NRS 41.290(1)
directs the court to grant the petition, so long as the court is "satisfied by
the statements in the petition, or by other evidence, that good reason exists
therefor." If an objection is filed, the court must hold a hearing to determine
whether the applicant has satisfactory reasons for the name change. Id. In
either case, before granting or denying the petition, "the court shall
specifically take into consideration the applicant's criminal record, if any,
which is stated in the petition." Id. Here, where appellant's name-change
petition faced no objections and where it appears that the petition met all
the statutory requirements, we conclude that the district court abused its
discretion in summarily dismissing it without resolution on the merits.
FACTS
Appellant Monica Denise Salazar, an inmate whose current
legal name is Anthony Roy Salazar,' filed a petition with the Eighth
'While no legal name change has occurred in this case, we note that
under common law, a person can go by any name they choose; this right pre-
dates the United States. See United States v. McKay, 2 F.2d 257, 259 (D.
Nev. 1924); Linton v. First Nat'l Bank of Kittanning, 10 F. 894, 897
(C.C.W.D. Pa. 1882) (citing The King v. Inhabitants of Billingshurst, 105
Eng. Rep. 603; 3 M. & S. 250 (1814)). While no law requires it, we choose
to follow other courts that acknowledge a party's chosen name on a
voluntary basis. See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1193 (9th
Cir. 2000) (acknowledging plaintiff's preferred name and gender); In re
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Judicial District Court's Family Division to change her name. Her petition
stated that her reason for the name change was to conform her name to her
gender identity. Along with the petition, Salazar filed an application to
waive fees and a request for summary disposition. The case was assigned
to Judge William S. Potter in Department M, and two months later,
department staff sent an informal communication to Salazar imposing
requirements without legal citation. Specifically, staff sent a notice
indicating that the court was denying the petition based on an internal
department policy requiring approval from the Nevada Department of
Corrections for inmate name changes, which could be overcome only with a
notice of nonopposition from the correctional department.2 No notice of
nonopposition was filed, and ultimately, without resolving the pending fee-
waiver application and request for summary disposition, the district court
summarily dismissed the petition for pending too long without any action
C. G., 976 N.W.2d 318, 323-24 (Wis. 2022) (using a transgender juvenile's
chosen name and pronouns "out of respect for [her] individual dignity").
2In her appendix, Salazar provided a copy of staffs October 8, 2020,
notice, which was on court letterhead from Department M and signed by
the judicial assistant to Judge Potter. As the notice does not appear in the
district court record on appeal, we take judicial notice of it. Mack v. Estate
of Mack, 125 Nev. 80, 91, 206 P.3d 98, 106 (2009) (recognizing that "we may
take judicial notice of facts that are ``[c]apable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned, so that the fact is not subject to reasonable dispute' (quoting
NRS 47.130(2)(b))).
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under Eighth District Court Rule (EDCR) 5.526.3 The district court's order
provided no explanation as to what action Salazar failed to take.4
Salazar appeals, asking this court to reverse and remand the
case for •further proceedings on her petition because the district court
erroneously applied the relevant law.5 We agree.
DISCUSSION
Other jurisdictions recognize that even though whether to
approve or deny name change petitions is within the district court's
discretion, the court must articulate "substantial and principled reasons"
when it denies the petition. In re Arnett, 56 Cal. Rptr. 3d 1, 6 (Ct. App.
2007); accord In re Cruchelow, 926 P.2d 833, 834 (Utah 1996) (following the
courts in New Hampshire and Colorado in determining that "the court must
show some substantial reason before it is justified in denying a petition for
a name change"). We find this approach consistent with the plain language
of NRS 41.290. We therefore adopt this standard and recognize that the
district court abuses its discretion when it denies a petition for a name
change without providing any substantial basis for so doing.
3EDCR 5.526(a), which has since been renumbered as EDCR 5.220(a),
provides that "[a] family case that has been pending for more than 6 months
and in which no action has been taken for more than 3 months may be
dismissed on the court's own initiative without prejudice."
4 While the case was originally assigned to Judge Potter, it was
reassigned to Judge Denise L. Gentile in January 2021, who entered the
dismissal order.
5After the notice of appeal was filed, the district court granted
Salazar's fee-waiver application.
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Here, the district court ostensibly dismissed Salazar's petition
for her failure to take action in the case for more than three months. But
Salazar's petition met NRS 41.270's requirements: it was addressed to the
district court of the district in which she resides, and it included her current
and desired names, the reason for the name change, the details of her felony
convictions, and a statement signed under penalty of perjury that she was
not changing her name for a fraudulent purpose. It also included a set of
fingerprints. See NRS 41.290(3). Although Salazar did not provide notice
of publication, publication is not required when, as here, "the applicant
states that the reason for desiring the change is to conform the applicant's
name to his or her gender identity." NRS 41.280(3). Further, while Salazar
apparently did not request submission of the petition after the 10-day
objection period had expired, there were unresolved motions pending before
the district court at that time, including one for summary disposition under
former EDCR 2.207 (now EDCR 5.701).
Because Salazar's petition met the requirements of NRS
41.270, no written objection was filed, and Salazar was exempt from the
publication requirement, the district court was required to proceed with
determining whether there was good reason to grant the name change
under NRS 41.290. It does not appear that the district court did so. And,
even if the court considered the matter and found substantial, principled
reasons for denying the petition, it should have articulated those reasons in
a written order. See Jitnan v. Oliver, 127 Nev. 424, 433, 254 P.3d 623, 629
(2011) (explaining that, "[wlithout an explanation of the reasons or bases
for a district court's decision, meaningful appellate review, even a
deferential one, is hampered because we are left to mere speculation" and
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citing numerous cases to the same effect). From the documents available in
the record, it appears that the only inaction in Salazar's case was the
district court's failure to resolve the pending petition and other requests,
such that EDCR 5.526 did not apply.
Salazar alleges on appeal that the district court communicated
certain concerns about her petition to her, such as her criminal history and
the ability of the Nevada Department of Corrections to keep accurate
records of its inmates. These concerns are not reflected in the record, so we
cannot and do not consider thern on review. Carson Ready Mix, Inc. v. First
Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981).
Nevertheless, we note that NRS 41.290(3) addresses concerns related to
inmate records: "If an order grants a change of name to a person who has a
criminal record, the clerk shall transmit a certified copy of the order to the
Central Repository for Nevada Records of Criminal History for inclusion in
that person's record of criminal history." And while a court must
"specifically take into consideration" a petitioner's criminal history, we
reiterate that the district court must provide substantial and principled
reasons for denying an adult name-change petition, preferably in writing.
Without such reasons having been articulated here, and as we can discern
no relevant inaction on the part of Salazar, we must conclude that the
district court failed to apply the correct legal standard and thus abused its
discretion in dismissing Salazar's petition.6 For this reason, we reverse the
6We decline to reach Salazar's constitutional challenge to the district
court's order. Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210, 212 (1979)
("This court will not consider constitutional issues which are not necessary
to the determination of an appeal.").
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district court's dismissal order and remand for further proceedings on
Salazar's petition under the applicable law.
J.
Hardesty
We concur:
444G-4-.0
Stiglich
Herndon
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