In re Jondle

317 Or.App. 303

506 P.3d 480

In the MATTER OF the Change of Name of Andrew Thomas JONDLE.

Andrew Thomas Jondle, Petitioner-Appellant.

A174303

Court of Appeals of Oregon.

Argued and submitted November 29, 2021.

February 2, 2022

Sara Kobak, Portland, argued the cause for appellant. Also on the brief were Rosa Ostrom, Schwabe, Williamson & Wyatt, P.C., Kelly Simon, and ACLU Foundation of Oregon.

Ruben Medina and Law Office of Ruben Medina LLC filed the brief amici curiae for Basic Right Oregon, Beyond These Walls, Black & Pink PDX, Portland Community College—Clear Clinic, and Clackamas Indigent Defense Corporation.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

TOOKEY, P. J.

This case requires us to interpret ORS 33.410 and ORS 33.460, which allow petitioners to apply for a change of legal name and a change of legal sex, respectively. Petitioner—a transgender woman who is currently incarcerated—seeks judicial review of a circuit court judgment denying her petition for a change of legal name and sex. The reason stated in the judgment for denying the petition was that it was "not in the public interest for petitioner's name and sex to be legally changed."

On appeal, petitioner assigns error to the denial of her petition. She argues that, under ORS 33.410 and ORS 33.460, the court may not deny a petition for change of legal name or sex as contrary to the public interest solely based on a petitioner's criminal convictions or incarceration, nor may it do so where the record contains no evidence that the change of legal name or sex is sought for a fraudulent or improper purpose.

As explained below, we conclude that, under ORS 33.410 and ORS 33.460, a court may not deny a petition for change of legal name or sex as inconsistent with the "public interest" based merely on a petitioner's status as a convicted or incarcerated individual; rather, a court may deny a petition for change of legal name or sex only where the record contains evidence that the change of legal name or sex is inconsistent with the "public interest"—that is, where the record contains evidence that change of legal name or sex is sought for some purpose harmful to the wellbeing of the general public, including, but not limited to, fraud, dishonesty, misrepresentation, evading creditors, or interfering with the rights of others. Applying that understanding, we further conclude that neither the circuit court's judgment denying petitioner's petition nor the record contains any factual bases for determining that petitioner's change of legal name and sex was inconsistent with the public interest. Consequently, we vacate the judgment as to the change of legal name and sex, and we remand to the trial court, where it will have the opportunity to engage in any necessary factfinding and to reconsider petitioner's petition in accordance with this opinion.

I. BACKGROUND

Petitioner is incarcerated with the Oregon Department of Corrections (DOC) based on her 2010 convictions for aggravated murder and burglary. During her time in custody, "petitioner came to recognize and accept that the male gender marker assigned to her at birth did not match her innate female gender identity." To "affirm her female gender identity and to facilitate her social gender transition," petitioner filed a petition to change her legal first name and her legal sex designation pursuant to ORS 33.410 and ORS 33.460.

In her petition, petitioner disclosed her 2010 convictions; provided her address as the DOC facility in which she is incarcerated; and attested, as required under ORS 33.460, that she had undergone "treatment appropriate to me for the purpose of affirming my gender identity." Neither DOC nor any other state agency, district attorney's office, or private party opposed the petition.¹ After petitioner submitted her petition, the circuit court did not hold a hearing on the petition, and it entered a judgment denying the petition.² The judgment stated as the basis for denial, "It is not in the public interest for petitioner's name and sex to be legally changed."

Petitioner now appeals—unopposed and supported by several amici —and she assigns error to the denial of her petition.³ Petitioner argues that a circuit court may not deny a petition under ORS 33.410 or ORS 33.460 as contrary to the public interest solely based on a petitioner's criminal convictions or incarceration, nor may it do so when the record contains no evidence that the change of legal name or sex is sought for a "fraudulent or improper purpose." Instead, petitioner argues, "the text, context, and legislative history of ORS 33.410 show that a circuit court has narrow authority to deny a petition to change legal name * * * as inconsistent with ‘the public interest’ only where the court makes specific findings, supported by evidence in the record, that the petition is made for fraudulent or improper purposes, or otherwise would result in actual prejudice to others." Petitioner also argues that "the text, context, and legislative history of ORS 33.460 show that a circuit court has authority to deny a petition for change of legal sex designation only where the petitioner fails to provide a valid and legally adequate attestation of having undergone appropriate treatment to affirm gender identity."

Based on that understanding of the statutes at issue, petitioner contends that, "[b]ecause no evidence supported the denial of petitioner's request to change her legal first name and sex designation to affirm her gender identity as inconsistent with ‘the public interest’ under ORS 33.410 and ORS 33.460, the circuit exceeded its legal authority in summarily denying the petition."

II. STANDARD OF REVIEW

A circuit court's authority under ORS 33.410 and ORS 33.460 is a matter of "statutory construction, and we are called upon to review the trial court's ruling for legal error." Matter of Hollister , 305 Or. App. 368, 370, 470 P.3d 436 (2020) ; State v. Stamper , 197 Or. App. 413, 416, 106 P.3d 172, rev. den. , 339 Or. 230, 119 P.3d 790 (2005) ("When the dispositive issue involves the meaning of applicable statutes, we review the court's ruling as a matter of law."). We will accept a trial court's findings of fact if those findings are supported by any evidence in the record. American Civil Liberties Union v. City of Eugene , 360 Or. 269, 289-90, 380 P.3d 281 (2016). A trial court's determination that a change of legal name or sex is inconsistent with the public interest is a legal conclusion, which we review for legal error. See id.

III. ANALYSIS

We begin our analysis by interpreting the provisions of ORS 33.410 (change of legal name), concluding that a circuit court may deny a change of legal name only if the record contains evidence that the change of legal name is inconsistent with the "public interest"—that is, where the record contains evidence that the change of legal name is sought for some purpose harmful to the wellbeing of the general public, including, but not limited to, fraud, dishonesty, misrepresentation, evading creditors, or interfering with the rights of others. Then, applying that interpretation to this case, we conclude that neither the judgment denying petitioner's change of legal name nor the record contains any indication that petitioner's change of legal name was inconsistent with the public interest. We then turn to interpreting the provisions of ORS 33.460 (change of legal sex), concluding that—as in a change of legal name under ORS 33.410 —a circuit court may deny a change of legal sex only if the record allows for a determination that the change of sex is inconsistent with the public interest. Applying that interpretation to this case, we conclude that neither the judgment nor the record contains any indication that petitioner's change of legal sex was inconsistent with the public interest.

In conducting our analysis, we are mindful that we are "responsible for identifying the correct interpretation, whether or not asserted by the parties." Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997).

A. ORS 33.410 (Change of Legal Name)

To interpret a statute, we must "ascertain the meaning of the statute most likely intended by the legislature." Hollister , 305 Or. App. at 372, 470 P.3d 436. "We do that by examining the text of the statute in its context, along with relevant legislative history, and, if necessary, canons of construction." Id. (internal quotation marks omitted).

The text of ORS 33.410 provides, in its entirety:

"Application for change of name of a person may be heard and determined by the probate court or, if the circuit court is not the probate court, the circuit court if its jurisdiction has been extended to include this section pursuant to ORS 3.275 of the county in which the person resides. The change of name shall be granted by the court unless the court finds that the change is not consistent with the public interest."

There are only two sentences in ORS 33.410. The first sentence confers upon circuit courts the authority to consider petitions for change of legal name. The second sentence, which is at issue here, provides that a court "shall" grant a change of legal name except where it "finds" that doing so is "not consistent with the public interest."

Three components of the second sentence are particularly relevant here. First, the word "shall" "ordinarily connotes obligation" to do something. Doyle v. City of Medford , 347 Or. 564, 570, 572, 227 P.3d 683 (2010) ("Ordinarily, use of the word ‘shall’ implies that the legislature intended to create an obligation."); see also Webster's Third New Int'l Dictionary 2085 (unabridged ed. 2002) (defining "shall," in part, as "must" and "used in laws, regulations, or directives to express what is mandatory"); Office of Legislative Counsel, Bill Drafting Manual § 4.4 (2018) ("To impose an obligation to act, use ‘shall.’ ").

Second, the word "find" carries a number of definitions, the most relevant here being "to arrive at (a...