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Volokh Conspiracy

You Say Misgender, I Say Misjoinder

Let's call the whole case off.


From yesterday's decision by a Pennsylvania appellate court in Porter v. Commonwealth (witten by Judge Bonnie Brigance Leadbetter):

Before this Court for disposition is the application for summary relief of Scott Porter, a/k/a Chauntey Mo'Nique Porter; Adolphus Talley, Jr., a/k/a Alonda Talley; and Robert Lee Noaker, Jr., a/k/a Priscylla Renee Von Noaker (Petitioners) and the preliminary objections of the Commonwealth of Pennsylvania; Pennsylvania Department of State; and Kathy Boockvar in her capacity as Acting Secretary of the Commonwealth (collectively, "Respondents") to Petitioners' petition … challenging the constitutionality of a 1998 amendment to what is known as the Commonwealth's Judicial Change of Name Act (Act)…[, which reads:]

"(1) The court may order a change of name for a person convicted of a felony, subject to provisions of paragraph (2), if:

"(i) at least two calendar years have elapsed from the date of completion of a person's sentence and that person is not subject to the probation or parole jurisdiction of any court, county probation agency or the Pennsylvania Board of Probation and Parole; or

"(ii) the person has been pardoned.

"(2) The court may not order a change of name for a person convicted of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, statutory sexual assault, sexual assault, aggravated indecent assault, robbery …, aggravated assault …, arson …, kidnapping or robbery of a motor vehicle …."

When common pleas grants the application of a convicted felon subject to subsection (c)(1), the court "shall notify the Office of Attorney General, the [Pennsylvania State Police] and the office of the district attorney of the county in which the person resides[.]" "[U]pon receipt of this notice, [PSP] shall include the change of name information in the central repository as provided for in 18 Pa.C.S. Ch. 91."

In the instant petition for review, Petitioners aver that they are "transgender women who live openly in accordance with their female gender but who are forced to use male legal names." Alleging that old felony convictions prevent them from changing their names, they aver that discrimination and confusion result when they engage in everyday transactions and present identification documents thereby causing others to perceive them as male…. [T]hey acknowledge that only subsection (c)(2) impacts them due to the nature of their felony convictions (rape and first-degree aggravated assault). In any case, they allege that the amendment prevents them from changing their names such that the names on their government-issued identification cards do not match their gender expression or identity.

By way of relief, Petitioners request declarations that the amendment is unconstitutional under (1) article I, section 1 of the Pennsylvania Constitution {[a]ll men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness} because it improperly infringes the right to control one's name; (2) article I, section 7 [the free speech provision] because it improperly infringes the guarantee against compelled speech; and (3) article I, section 1, as applied to them, because it violates their interest in avoiding disclosure of personal matters….

An interesting substantive question, but of course it ends up being resolved on procedural grounds:

Misjoinder of Parties

… With respect to the Department and Secretary Boockvar, we have noted that Commonwealth agencies and actors are proper parties in declaratory relief actions only when they have or claim an interest that would be affected by the declaration…. [N]either the Department of State nor its Secretary play any role in the Act.

As noted, an applicant desiring a name change must petition a court of common pleas. A court of common pleas must forward a duplicate copy of the application and a set of the individual's fingerprints to PSP, which must certify to the court what action PSP has taken. The Act does not include a requirement that either common pleas or PSP notify Respondents of any action. The Act does not impose any duties on Respondents, and Petitioners made no allegations that Respondents failed to fulfill any duties. Finally, the Act does not require any filings with the Department of State. Accordingly, we sustain Respondents' misjoinder preliminary objection….