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08/04/77 SECRETARY COMMONWEALTH & ANOTHER *FN1 v.

August 4, 1977

SECRETARY OF THE COMMONWEALTH & ANOTHER *FN1
v.
CITY CLERK OF LOWELL & OTHERS *FN2



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 28, 1976. The case was reserved and reported by Kaplan, J.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ. Quirico, J., Dissenting, with whom Liacos, J., joins.

SYLLABUS BY THE COURT

Name. Parent and Child. Vital Statistics. Municipal Corporations, Clerk's records. City and Town Clerks.

The opinion of the court was delivered by: Braucher

Discussion of the right at common law to change one's surname. [183]

Discussion of Commonwealth statutes affecting surnames. [183-185]

Discussion of recent legal developments with respect to freedom of choice in the matter of names. [185-187]

A woman, regardless of her marital status, may change her name at will, without resorting to legal proceedings, provided it is done for an honest purpose. [187-189]

A married couple may give their legitimate child the surname of their choice. [189-190]

A mother may choose the surname to be given to her illegitimate child; this court, however, reserved the question whether the mother of an illegitimate child may give him substantially the same name as the putative father's. [190-192]

In recording births and marriages municipal clerks have no power to determine people's surnames according to customary rules, but must record the name chosen by the individual concerned. [193] Quirico, J., Dissenting, with whom Liacos, J., joined.

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 48 (1974). Rep. A.G., Pub. Doc. No. 12, at 72 (1974). 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 ...


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