Jech v. Burch

• Decision Date: 21 February 1979
• Docket Number: Civ. No. 77-0244.
• Citation: 466 F. Supp. 714
• Parties: Alena JECH, Adolf Befurt and Adrian Jebef, by his next friend, Alena Jech, Plaintiffs, v. Thomas A. BURCH and George A. Yuen, Defendants.
• Court: U.S. District Court — District of Hawaii

466 F. Supp. 714

Alena JECH, Adolf Befurt and Adrian Jebef, by his next friend, Alena Jech, Plaintiffs, v. Thomas A. BURCH and George A. Yuen, Defendants.

Civ. No. 77-0244.

United States District Court, D. Hawaii.

February 21, 1979.

Alan Van Etten, Fong, Miho & Robinson, Honolulu, Hawaii, for plaintiffs.

Melvin M. Miyagi, Deputy Atty. Gen., Ronald Y. Amemiya, Atty. Gen., Honolulu, Hawaii, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

STATEMENT OF THE CASE

SAMUEL P. KING, Chief Judge.

On March 28, 1977, Alena Jech gave birth to a baby boy. She and her husband, Adolf Befurt, named the boy Adrian. Had they left it at that, there would be no case. They did not.

Instead of choosing either the father's surname ("Befurt") as required by H.R.S. § 574-2 (1976),¹ or one of the surnames allowed by an opinion of the State Attorney General² ("Befurt-Jech" or "Jech-Befurt"), Adrian's parents decided upon the fused surname "Jebef." The name "Adrian Jebef" was duly reported to the state's registrar of births as required by H.R.S. § 574-4 (1976).³

By letter dated April 25, 1977, Thomas A. Burch, Chief of the Research and Statistics Office of the State Department of Health, wrote to "Mrs. Alena Jech," telling her that the listed surname for Adrian was not in accord with Hawaii State law. He stated that Adrian's birth certificate should be processed with the surname "Befurt," "Jech-Befurt," or "Befurt-Jech," and asked her to advise him which of these surnames she preferred. Mr. Burch also referred the new mother to the State law on change of names, and informed her that the birth certificate would be amended to show "Jebef" as the child's surname if a change of name decree was obtained from the Lieutenant Governor's office. This letter was ignored.

By letter dated June 2, 1977, Mr. Burch advised "Ms. Alena M. Jech" that, if no answer to the letter of April 25, 1977 was received by June 25, 1977, "we will change his surname to be the same as his father's surname." This letter was ignored.

There being no response to Mr. Burch's two letters, he altered the certificate submitted by the parents by crossing out the surname "Jebef" and inserting the surname "Befurt." A birth certificate was then issued under the name "Adrian Befurt."

To correct what they deemed to be an unconstitutional invasion of their rights in violation of 42 U.S.C. § 1983, Alena Jech, Adolf Befurt, and Adrian Jebef by his next friend Alena Jech, brought suit in this court on July 7, 1977, against Thomas A. Burch, Chief of the Research and Statistics Office of the Department of Health, State of Hawaii, and George A. L. Yuen, Director of Health, State of Hawaii.⁴ Jurisdiction is invoked pursuant to 28 U.S.C. § 1343.

THE HAWAII LAW ON NAMES

The basic statute in Hawaii on names was adopted in 1860.

Until 1975, it was required that every married woman shall adopt her husband's name as a "family name." H.R.S. § 574-1 (1968). This was changed in 1975 to allow a wife to retain her maiden name, or a husband to take his wife's surname, or either party to choose a hyphenated combination of both surnames, in either order. L.1975, ch. 114, § 1. The statute would seem to allow Mary Roe and John Doe after marriage to choose to be known (among other variations) as Mary Roe-Doe and John Doe-Roe, as there is no stated requirement that each party choose the same hyphenated surname. See H.R.S. § 574-1 (1976).⁵

Until 1967, it was required that all children born in wedlock shall have their father's name as a "family name" and "besides . . . a Christian name suitable to their sex." R.L.1955, § 327-2. In 1967, the words "Christian name suitable to their sex"⁶ were deleted and the words "given name" substituted. L.1967, ch. 6, § 2. A further amendment was made in 1975 to accommodate a law adopting the Uniform Parentage Act. This added a sentence that "all children legitimated, as provided in the law, shall have either their father's name or their mother's name as a family name." L.1975, ch. 66, § 3.

The statutory requirement that children born in wedlock shall have their father's name as a "family name" remains unchanged. H.R.S. § 574-2 (1976).⁷ But in accordance with opinions from the State Attorney General, the registrar of births permits the original birth certificate to give as the child's surname a hyphenated combination of the parents' surnames, in either order.⁸

It is to be noted that this freedom of choice does not include the mother's surname alone. It is to be noted further that this same section permits the original birth certificate of a child born out of wedlock who is legitimated, to show either the father's surname or the mother's surname, if legitimation is accomplished before the original birth certificate is filed, but apparently not a hyphenated combination of surnames.

Consistently since 1860, illegitimate children who are not legitimated before the original birth certificate is filed are required to have their mother's surname as a "family name." H.R.S. § 574-3 (1976).⁹ Changes in 1967 amended the requirement of a "Christian name suitable to their sex" to simply a "given name." L.1967, ch. 6, § 2.

The father or mother of a child is required to report the "name or names" of the child to the registrar of births for the district in which the child was born, within three months after the birth of the child. H.R.S. § 574-4 (1976).¹⁰ It was pursuant to this requirement that the birth of "Adrian Jebef" was reported.

The final section of the Hawaii law relating to names provides a relatively simple procedure for changing a name. H.R.S. § 574-5 (1976).¹¹ The cost adds up to about $35. A change of name of someone whose birth is registered with the Hawaii Department of Health is noted on the original birth registration. A birth certificate issued thereafter would be amended accordingly.

The name-change law has been used as though it applied to any person living in Hawaii. The statute itself, however, only makes it unlawful to change "any name adopted or conferred under this chapter." Alena Jech and Adolf Befurt were born in Europe. Their names were neither adopted nor conferred by any statute of Hawaii. Presumably they could have changed their surnames to "Jebef" without going through the procedures set forth in H.R.S. § 574-5, registered the birth of "Adrian Jebef," and then changed their surnames back to "Jech" and "Befurt."

I know of no general requirement of law in the absence of a statute that any special procedures must be followed to change one's name. The common law was, quite clearly, that one was free to call himself by whatever name he wished. Secretary of Commonwealth v. City Clerk of Lowell, Mass., 366 N.E.2d 717 (Mass.1977). In any event, plaintiffs Jech and Befurt did not follow this procedure.

THE OPERATIONS OF THE REGISTRAR OF BIRTHS

When life was simpler, registration certificates of children born in wedlock in Hawaii were indexed under the child's surname. This was invariably the father's surname.

Following the statutory changes of 1975, the Department of Health began indexing births under the father's surname. This is still the procedure, even though the child's surname may be a hyphenated combination of both parents' surnames. Thus, a son of Mary Roe and John Doe would be indexed under the surname Doe, even if his parents chose to give him the hyphenated surname Roe-Doe.

For reasons which have still not been explained satisfactorily to me, the department is completely defeated by the problem of indexing a child's surname, such as "Jebef," which does not belong to either of the parents. Present procedures would accommodate indexing the name "Jebef-Befurt" or "Befurt-Jebef," as the registrar would index the child's birth under the father's name in either case, ignoring the other half of the hyphenated surname. Assuming that administrative convenience dictates a continuation of a male-oriented indexing system, the registrar did not make clear to me why there could not be a cross-reference from "Adrian Jebef" to "Adolf Befurt."

WHY THE PARTIES ARE AT ODDS

One would have thought that this controversy could have been settled long before it escalated into a Constitutional crisis. A simple bureaucratic accommodation in this one instance could have been made in a few minutes. A tentative opinion by the State attorney general that there was enough confusion in the Hawaii statutes to justify acceptance of the report as filed would not have bound the State to any substantial outlay of public monies while we waited to see whether this kind of registration would grow into a significant problem.

On the other hand, for less than $35, the plaintiffs could have, and still may, change Mr. Burch's change back to the original "Jebef."

Why then are the parties so set on confrontation?

I confess that I understand plaintiffs' obduracy more easily than defendants' inflexibility. Defendants say it has to be the way they say because the statutes of Hawaii so require. Plaintiffs say that they gave the naming of their child a great deal of thought and agreed on the name "Jebef" for a variety of emotional, cultural, and experiential reasons in which they believe very strongly, and that government should not be allowed to interfere with their personal decision in naming their own child absent some overriding state interest.

THE CONSTITUTIONAL ISSUE

The first question is whether we are dealing with a problem that has any Constitutional dimensions whatsoever. Does the Federal Constitution concern itself with the procedures whereby a child is named at birth?

If plaintiffs have any Constitutional right to complain of defendants' actions, they must derive that right from broader Constitutional Rights of Privacy.¹² Is there any basis for such a derivation?

The term "privacy" connotes a variety of related interests, all of which are at odds with the social controls over individuals by a technological society, epitomized by its vast systems of

...