Secretary of Com. v. City Clerk of Lowell

• Decision Date: 04 August 1977
• Citation: 373 Mass. 178,366 N.E.2d 717
• Parties: SECRETARY OF the COMMONWEALTH et al. 1 v. CITY CLERK OF LOWELL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 717

366 N.E.2d 717

373 Mass. 178

SECRETARY OF the COMMONWEALTH et al. ¹ v. CITY CLERK OF LOWELL et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1977.

Decided Aug. 4, 1977.

Barbara J. Rouse, Asst. Atty. Gen., Boston, for plaintiffs.

David Lee Turner, Town Counsel, for the Town Clerk of Brookline (Henry P. Grady, City Sol., for the City Clerk of Worcester, with him).

Donald L. Conn, Burlington and James R. Senior, Somerville, for the City Clerk of Melrose, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

BRAUCHER, Justice.

In 1974 the Attorney General issued three opinions with respect to the recording and use of names. Rep. A.G., Pub. Doc. No. 12, at 105 (1974). Rep. A.G., Pub. Doc. No. 12, at (1974). ^a Rep. A.G., Pub. Doc. No. 12, at (1974). ^b Those opinions asserted and elaborated a common law principle that people may select or change their names freely if there is no fraudulent intent. The defendants, city and town clerks, refused to follow those opinions and that principle in recording births and marriages, asserting a power to determine people's surnames according to customary rules, regardless of the desires of the people concerned. The responsible State officials, particularly the Registrar of Vital Records and Statistics (Registrar), brought this action to settle the controversy. We hold that the Attorney General is right and the city and town clerks are wrong, and order that the rights of the parties be declared accordingly.

The plaintiffs filed a complaint on July 28, 1976, in the Supreme Judicial Court for the county of Suffolk. On August 16, 1976, a single justice of this court denied the plaintiffs' prayer for a preliminary injunction, without prejudice to further application if the action was certified as a class action, but granted temporary relief in seven specific cases alleged in the complaint and supported by affidavits. Answers were filed and the plaintiffs moved to certify a class of defendants comprising all the city and town clerks in the Commonwealth. Decision on that motion was deferred and the case continued to give the parties an opportunity to file a statement of agreed facts and a proposed reservation and report. On January 6, 1977, no statement of agreed facts having been filed, the plaintiffs moved for summary judgment, attaching affidavits alleging ten additional specific cases in Boston and one in Northampton. A stipulation of facts was filed on February 4, 1977, and on February 17, 1977, a single justice of this court reserved and reported the case on the stipulation, the pleadings, the motion for certification and the motion for summary judgment.

We summarize the stipulated facts, omitting statements of law. Only initials of surnames are given. (1) Mr. C and his wife Ms. G selected the name G for their son in accordance with Spanish tradition. The mother, unable to read English, signed a birth certificate using the name C. One of the defendants recorded the name as C and refused to change it. (2) Mr. B and his wife Ms. S submitted a birth certificate for their son using the name B-S, and one of the defendants refused to accept it. (3) Ms. S chose the name P-S for her illegitimate son. Without her approval, one of the defendants recorded the name as S and refused to change it. (4) The illegitimate daughter of Ms. G was recorded as G. When Ms. G married the father, Mr. L, five years later, one of the defendants refused to register legitimation unless the child's surname was changed to L, and insisted that the affidavit of paternity list the mother's name as L, although she had not adopted her husband's name. (5) Ms. L was divorced from Mr. L and resumed her maiden name McC. Two of the defendants refused to issue a marriage license to her in the name McC, and she received and used a marriage license in the name L, the name on her divorce decree. She and her husband both took the name McC-M, and a third defendant refused to register the legitimation of their daughter unless the child's name was changed from McC to M. (6) Mr. D and his wife Ms. D selected the surname F for their daughter. One of the defendants refused to accept that name for registration and instead recorded the birth under the name D. (7) Ms. N sought to name her illegitimate daughter D. One of the defendants refused to record the birth in that name.

On January 14, 1976, the Massachusetts City Clerks' Association, Inc., unanimously adopted the formal position that legitimate births would only be recorded in the surname of the father and illegitimate births in the surname of the mother. This has been the custom and usage in Massachusetts for over 200 years with respect to the recording of births by city and town clerks. Over the past several years there have been increases in the number of parents requesting the recording of births in other surnames. City and town clerks customarily do not change a name on a birth or marriage record except by court order or pursuant to specific statutory provisions. City and town clerks are requested, on a continuing and regular basis, and are required to furnish certified copies of birth and marriage certificates to citizens so that they may use them in obtaining passports, public assistance, inheritance claims, social security, drivers' licenses, insurance and other benefits, registering a child for school and registering to vote, enforcing support obligations, establishing identification and family relationships, and for many other purposes. If a birth or marriage is not recorded, such certified copies cannot be furnished.

1. Duties of the parties. The Secretary of State is charged by the Constitution with responsibility for keeping the records of the Commonwealth. Mass. Const. Part II, c. 2, § 4, art. 2. The Registrar, under the supervision of the Commissioner of Public Health (Commissioner), is to "enforce all laws relative to the registry and return of births, marriages and deaths, and may prosecute in the name of the commonwealth any violations thereof." G.L. c. 17, § 4, as amended through St. 1976, c. 486, § 3. Such laws are the subject of G.L. c. 46, as amended through St. 1976, c. 486. The city and town clerks are to "receive or obtain and record" prescribed facts relative to births, marriages and deaths, and are periodically to transmit to the Commissioner "upon forms furnished by him" certified copies of the record. §§ 1, 17. The record of the city or town clerk is prima facie evidence of the facts recorded, and a certificate of the Commissioner's copy, signed by the Commissioner or the Registrar, is admissible as evidence of the record. § 19.

In birth records, the facts to be recorded include "name of child" and "names, places of birth and residence of his parents, including the maiden name of the mother and occupation of the father. In the record of birth of an illegitimate child, the name of and other facts relating to the father shall not be recorded (except on the written request of both father and mother )." ³ In marriage records, the facts to be recorded include "names and places of birth of the parties married," "the names of their parents, and the maiden names of the mothers. If the woman is a widow or divorced, her maiden name shall also be given." G.L. c. 46, § 1. As to a birth in a hospital, the physician or hospital medical officer in charge is to keep a record and file a report with the administrator or person in charge of the hospital, and the latter is to make a copy, "on forms prepared and furnished by the commissioner of public health," and file the copy with the city or town clerk. The copy is to be "signed by the mother or if she is not able then by the father or other responsible adult, attesting to the truth and accuracy of the facts appearing in the report." §§ 3, 3A. The clerk is to determine that the return is filled out in accordance with § 3; if there are deficiencies or omissions, he is to return it for correction or completion. § 4A.

" The municipal clerk," the defendants say, "must have the skills of Sherlock Holmes and the wisdom of Solomon." We do not quarrel with that assertion, but it does not extend to the decision of questions of law. When the Registrar has obtained the advice of the Attorney General on a question of law, and the Registrar has informed the clerk of the result, it is no part of the duty of the clerk to substitute his legal judgment for that of the Attorney General. Nor do we think the clerk has any general duty to investigate facts reported to him in proper form or to resolve factual disputes. In certain cases he has some discretion; by § 13, for example, he is given special responsibilities with respect to credibility in the correction of errors in the record and in cases of legitimation or adoption. Otherwise, however, he must inevitably rely on facts supplied by the parties.

2. Surnames at common law. "It is well settled that at common law a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose." Merolevitz, petitioner, 320 Mass. 448, 450, 70 N.E.2d 249, 250 (1946), and cases cited. This principle was recognized by this court very early: ". . . we know not why corporations may not be known by several names as well as individuals." Minot v. Curtis, 7 Mass. 441, 444 (1811). "Where a person is in fact known by two names, either one can be used. This principle has been applied in about every connection." Young v. Jewell, 201 Mass. 385, 386, 87 N.E. 604 (1909), and cases cited. Numerous authorities in other jurisdictions are in accord. See Smith v. United States Cas. Co., 197 N.Y. 420, 423-429, 90 N.E. 947 (1910), and cases cited.

3. Statutes affecting surnames. Statute 1849, c. 141, empowered the judge granting a divorce decree to a married woman "to allow said woman to resume her maiden name." See G.L....