                                                                        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




Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020                            Page 1 of 16
                                                                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

      Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020                   Page 2 of 16
      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.


      Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020           Page 3 of 16
       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

       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020            Page 4 of 16
       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.
       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020           Page 5 of 16
       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

       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020            Page 6 of 16
               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:

       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020                  Page 7 of 16
                                 (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.




       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020               Page 8 of 16
[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:




       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020              Page 9 of 16
               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

       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020          Page 10 of 16
       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


       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020             Page 11 of 16
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.

Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020                                        Page 12 of 16
               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


       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020         Page 13 of 16
       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


       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020          Page 14 of 16
       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”).

       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020                                    Page 15 of 16
       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.




       Court of Appeals of Indiana | Opinion 19A-MI-2166 | May 18, 2020        Page 16 of 16
