The Supreme Court has received a petition for certiorari seeking review of the 7th Circuit’s March 28 decision in Doe v. Holcomb, 883 F.3d 971, petition for certiorari, No. 17-1637 (filed June 4, 2018), a dispute over the constitutionality of Indiana’s limitation of the right to obtain a legal change of name to U.S. citizens.
The “John Doe” plaintiff is a transgender refugee from Mexico, who was brought to the U.S. as a child by his parents, where they have lived in Indiana. Doe was awarded asylum in the United States, consistent with a developing body of case law recognizing the dangerous situation for transgender people in Mexico. Identified as female at birth, Doe now lives consistently with his male gender identity, and has obtained many of the necessary documents, but he was advised by the Marion County Clerk’s office that it would be futile for him to file a name-change petition, because Indiana’s name-change law has an inflexible requirement of U.S. citizenship as a prerequisite, not subject to waiver. Doe has encountered practical difficulties due to the discordance between his obviously-female legal name on identification documents and his male appearance both in person and in photo IDs. Imagine the difficulty for a transgender man of dealing with a police stop, the presentation of an ID to enter an office building or to board an airplane or to be admitted to a hospital, if an obviously female name appears on the document. Among other things, every time Doe presents identification, he is being “outed” as transgender, raising serious privacy concerns.
Represented by the Transgender Law Center (Oakland, CA), the Mexican American Legal Defense & Educational Fund (Los Angeles) and Indianapolis attorney Barbara Baird, Doe filed suit in the U.S. District Court in Indianapolis, naming as defendants then-Governor Mike Pence, then-Attorney General Gregory Zoeller, then-Marion County Clerk of Court Myla A. Eldridge, and Executive Director Lilia G. Judson of the Indiana Supreme Court Division of State Court Administration, all in their official capacities. Chief U.S. District Judge Jane Magnus-Stinson granted the defendants’ motion to dismiss (2017 WL 956365 [S.D. Ind., March 13, 2017]), finding that Doe lacked standing to sue these officials, opining that the “injury in fact” that Doe claimed to suffer was not fairly traceable to any conduct by the named defendants and would not likely be redressed by a favorable decision against them. Of course, Doe could not sue the state directly in federal court because of the 11th Amendment, which insulates states from being sued by their residents in federal court except where the state has waived such immunity.
Doe appealed and a 7th Circuit panel affirmed on March 2, voting 2-1, but on different (and surprising grounds). While agreeing that the suit against the county clerk (Mary Willis having been substituted for her predecessor) should be dismissed on standing, the court opined that 11th Amendment immunity stood in the way of suing the named state officials (by now, new Governor Eric Holcomb and new Attorney General Curtis T. Hill, Jr. as well as Ms. Judson). The majority of the 7th Circuit panel found that none of the named state officials had the sort of enforcement responsibilities for the name-change statute that would subject them to potential liability in their official capacities to overcome the 11th Amendment immunity they otherwise enjoyed from being sued in federal court. The 7th Circuit majority asserted that the correct way for Doe to proceed would be to file a name change application in the Marion County state court and, if it is denied by that court on the ground that Doe is not yet a U.S. citizen, either to wait until he can complete the naturalization process (for which he will be eligible to apply four years after his permanent residence status was approved by the government), or to make his constitutional challenge to the citizenship requirement in the state court and, if necessary, appeal it up through the state court system, ultimately seeking U.S. Supreme Court review if the highest state court to consider his appeal rules against him. (Given the time it would take to go through the state court system, this route would perhaps be less practical than just waiting until he can become a citizen, although reported backlogs in the naturalization process might suggest otherwise. The website uscitizenshipsupport.com reported this January that the waiting time for process new citizenship applications averages nine months, and that the agency has been overwhelmed as the Trump Administration’s crack-down on non-citizens and deportation activity has prompted a flood new citizenship applications from legal residents.) To avoid the 11th Amendment immunity problem, says the panel majority, he should pursue his remedy in state court. The majority’s reliance on 11th Amendment immunity was surprising because none of the defendants sought to raise an immunity defense in the district court, according to the cert petition.
The majority’s conclusion drew a strong dissenting opinion from Chief Circuit Judge Diane Wood. “This is an unusual case,” she wrote, “but in the end it is not one that we should bar from adjudication. . . In my view, the majority’s analysis gives insufficient weight to the significant roles played by the Attorney General, Executive Director, and Clerk in enforcing the name-change statute and preventing Doe from securing official recognition of his identity.” While agreeing that the governor should be dismissed as a defendant, Wood focused on the attorney general’s role as the state’s chief law enforcement official and the one charged with defending the constitutionality of state statutes, and the administrative responsibility of the other two officials. “I would give Doe an opportunity to amend his complaint to name other executive-branch officials whose responsibilities include the policing of the name a person uses in order to receive services or to deal with the state.”
The cert petition, which identifies as Counsel of Record Thomas A. Saenz of the Mexican American Legal Defense and Educational Fund, makes a very practical argument about why Doe should be allowed to proceed in federal court on the merits of his constitutional claim. Indiana is the only state that requires citizenship by statute as a prerequisite for a legal change of name, and does not apparently give its courts any ability to waive that requirement in particular cases. The provision was adopted relatively recently, and is clearly part of the overall hostility toward non-citizens by the current Republican-dominated state government. That same bias may well be present in the state judiciary, especially given the elected status of judges in the state. The Petition argues that Doe should not be required to undertake the likely futile, time-consuming and expensive step of litigating this question in the politically-responsive state court system. Indeed, the availability of a federal forum, made up of judges who have no political accountability to the state electorate, to determine whether the citizenship requirement is constitutional seems the much more appropriate way to go in order to afford Doe the appropriate neutral forum to decide his constitutional claim. (Ironically, this principal was at the heart of the Supreme Court’s ruling in Masterpiece Cakeshop, which was announced on the day this Petition was filed with the Supreme Court!)
The Petition’s argument echoes concerns raised by Judge Wood in her dissent. “Consider the consequences if any state function entrusted to the state court system were placed beyond the power of the federal courts to address (an outcome, I note, that would be incompatible with Mitchum v. Foster, 407 U.S. 225 (1972), which upheld the power of the federal courts to issue civil rights injunctions against state-court proceedings). A state hypothetically could refuse to allow an African-American person to change his or her surname on an identification card to that of a Caucasian spouse, in flagrant violation of Loving v. Virginia, 388 U.S. 1 (1967), or it could pass a statute refusing to allow a single surname for a same-sex couple, in disregard of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The expedient of placing final authority for name-changes in the state court system cannot operate to avoid accountability for potential violations of the federal constitution by other state officials. Nor can it have the effect of negating the right of any person to bring an action under 42 U.S.C. sec. 1983, which lies within the subject matter jurisdiction of the federal courts, see 28 U.S.C. secs. 1331, 1343(a).”
Judge Wood also noted that many functions are confided by the state to its court system, and “when there is a problem in the system, those aggrieved by that problem sue the state official best suited to the situation.” In this case, for example, Wood suggests that Doe could have sued the Commissioner of the Bureau of Motor Vehicles in order to change his name on his driver’s license. “It is likely that the Commissioner would have defended his action in such a lawsuit on the basis of the state statute, but Doe’s response to such a defense would have rested on his constitutional rights,” she wrote. But suing each individual department head for name-change relief would not be “a particularly efficient system,” wrote Wood. While noting the majority’s suggestion that Doe should initiate his case in the state courts, Wood observed, “What the majority has not explained to my satisfaction, however, is why the same suit cannot be brought in the form and forum Doe has chosen – that is, in a federal court, when no conflicting state-court proceeding or judgment exists.”
The Petition suggests that this case would provide a suitable vehicle for the Supreme Court to clarify the right of individuals to access a federal forum in order to assert their constitutional rights in the face of a state law that, on its face, discriminates in a way that clearly implicates the 14th Amendment, which explicitly guarantees equal protection of the laws to everybody present in the United States, not just to citizens. And, in other contexts, the federal courts have sharply questioned state laws that require citizenship as a prerequisite for various rights and benefits. One is hard put to think of any significant state policy reason for absolutely restricting legal name changes based on citizenship. If there might be some reason in a particular case, state judges could be charged with fact-finding and discretion to deny a particular name change application, which discretion they already possess if they find that a change is requested to avoid accountability for crimes or debts or to perpetrate a fraud.
However, one cannot be optimistic that the Court will grant this Petition, for the simple reason that over the past few decades the Court has sharply reduced the number of cases it is willing to hear each term, preferring to focus on disputes among the circuit courts about the interpretation of federal statutes or constitutional questions that have national import. Since Indiana is the only state imposing such a citizenship requirement for a name change, at present a decision on this case would not seem to meet that description. But perhaps the Court will see the 7th Circuit’s approach to federal court jurisdiction in this case to present an issue of broader import affecting the entire federal court system and the ability of legal residents to access the federal courts to vindicate their federal rights, the kind of issue that is normally addressed in several cases each Term by the Court.
The state of Indiana’s response, if any, to this Petition is due at the Court by July 5. A decision on whether to grant the Petition would not be likely until shortly before the Court reconvenes for its next term late in September.