Tuesday, November 21, 2017

name change - transgender person - right to hearing

In re A.S.D – Pennsylvania Superior Court – November 20, 2017

majority opinion

concurring opinion

Transgender person (male to female) petitioned under 54 Pa. C.S.  702 for change of name, alleging consistent use, avoidance of identification issues, and lessening of social stigma.  Applicant had been convicated of 3d degree felony more than two (2) years prior to name change petition but was not on probation or parole and thus satisfied all statutory conditions under sec. 702 (c)(1), as the trial court recognized.  However, the trial court denied the petition, without holding a hearing, citing the criminal conviction, and provided that the applicant could re-file in 12 months.

The majority reversed and remanded for a hearing, citing In re Harris, 707 A.2d 225 (Pa. Super. 1997), which mandated a hearing if a petitioner satisfied all statutory prerequisites, after which it could grant or deny the petition.  

The concurring judge felt tha compliance with the “technical requirements” of the name-change statute “should be the sole consideration...utilized by the trial court,” citing the concurring opinion of Juge Popovich in In re Harris.  The judge felt that the petition should be granted “if, upon holding the hearing, the court find no indication that the name change is being sought for fraudulent purposes.”

The concurring judge said:

In enunciating his position, Judge Popovich highlighted the rationale underlying the change of name statute, noting that the primary purpose is to prohibit fraud by those trying to avoid financial obligations. This intent is reflected in the penalty provision of the statute, which applies only to ‘person[s] violating the provision of this chapter for the purpose of avoiding payment of taxes or other debts.’ Id. at 229 (Popovich, J., concurring) (citing Commonwealth v. Goodman, 676 A.2d 234, 236 (Pa. 1996)). He observed that the statute is purely procedural, and absent an indication of fraudulent intent, “[t]his is where the inquiry ends.” Id. at 229. . . . .

I believe that the hearing required by 54 Pa.C.S. § 701(a.1)(3) is intended to provide a forum for individuals or creditors to oppose a proposed name change based on suspected fraudulent purposes or other nefarious intent. In re Miller, 824 A.2d 1207, 1210-1211 (Pa.Super. 2003) (stating “the necessity for judicial involvement in name change cases centers on government concerns that persons not alter their identity to avoid financial obligations.”) (brackets and citation omitted). Hence, any hearing held pursuant to the Judicial Change of Name statute should focus only upon evidence relating to these concerns and the requirements enunciated in § 702. I fear that any reason utilized outside the dictates of the statute to deny a petition raises the specter of pretext and constitutes an abuse of discretion.