In re Petition of Clark ( 2019 )

No. 121,034
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Petition of BEAU LEE CLARK.
SYLLABUS BY THE COURT
1.
The statutory name change provisions in Kansas do not require demonstration of a
compelling reason for the name change. If the judge is satisfied as to the truth of the
allegations of the petition and there is reasonable cause for changing the name of the
petitioner, "the judge shall so order" the change. K.S.A. 60-1402(c).
2.
There is nothing in K.A.R. 44-12-506 that precludes a person from changing his or
her name while incarcerated.
Appeal from Norton District Court; PRESTON PRATT, judge. Opinion filed September 6, 2019.
Reversed and remanded with directions.
Beau Lee Clark, appellant pro se.
No appearance by appellee.
Before ARNOLD-BURGER, C.J., BRUNS and WARNER, JJ.
ARNOLD-BURGER, C.J.: Beau Lee Clark appeals the district court's denial of his
petition to change his name to Beau Lee Northcutt. The court found—based on a Kansas
Department of Corrections regulation—that Clark's status as an inmate precluded him
from changing his name while incarcerated. But the regulation in question specifically
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anticipates an inmate changing his or her name while incarcerated, so we must reverse
the district court decision denying Clark's petition.
FACTUAL AND PROCEDURAL HISTORY
In November 2018, Clark, an inmate incarcerated at the Norton Correctional
Facility, petitioned to change his name. He sought to change his name from Beau Lee
Clark to Beau Lee Northcutt. Clark explained in an affidavit accompanying the petition
that his mother had changed his last name when he was a minor after remarrying and he
now wished to re-assume his birth name. As the sole surviving male heir of his birth
father's family name, Clark wanted to "carry[] on that legacy" and had plans to obtain
similar name changes for his children with his ex-wife.
The district court set a hearing and ordered Clark to provide notice to several
parties of interest under K.S.A. 60-1402(b), including: the Lyon County Attorney's
Office, the Lyon County District Court Clerk, and the Kansas Department of Corrections
(KDOC). Clark sent the required notice by certified mail to all three parties. The Deputy
Clerk for Lyon County sent Clark a response letter acknowledging its receipt of the
notice and directed Clark to provide copies of "the Order Changing Name, signed by the
Honorable Judge Preston A. Pratt" so that the order could "be filed in [Clark's] cases here
in Lyon County District Court."
The district court conducted a telephone conference with Clark. The district court
denied the petition, finding:
"6. Petitioner alleges that the Petition for Change of Name is not made for the
purpose of avoiding any debts, obligations or legal process nor is it made for the purpose
of misleading or defrauding any person; and that the requested name change will not
result in prejudice to any person. The Court finds, however, that Petitioner is an inmate of
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the Norton Correctional Facility. As such he is required by K.A.R. 44-12-506 to continue
using and responding to his convicted name until his sentence is fully discharged.
Petitioner states he should be released from prison in June of 2020 and should be released
from post-release supervision in June of 2021.
"7. Although no objection to the change of name has been received from the
Kansas Department of Corrections or from the victim in the criminal case which led to
Petitioner's current incarceration, the Court finds there is not reasonable cause for
changing Petitioner's name. In particular the Court finds that because Petitioner is in the
custody of KDOC he is required to continue using his convicted name of Clark until his
sentence is discharged, granting the proposed name change could lead to the avoidance of
legal obligations including collection of restitution, and could mislead the general public
regarding prior convictions."
Clark timely appealed.
ANALYSIS
Clark argues that the district court erred when it denied his name change petition.
He raises three challenges to the district court's decision: (1) the court's findings were
based on a misinterpretation of K.A.R. 44-12-506; (2) any person has the right to a name
change under the common law by simply using the new name; and (3) K.S.A. 60-1401
does not require a compelling reason to change one's name. No appellee brief has been
filed.
Name changes in Kansas are governed by statute. The district court "shall have
authority to change the name of any person . . . within this state at the cost of the
petitioner without affecting any legal right." K.S.A. 60-1401. The statutory provisions do
not require a demonstration of a compelling reason for the change but provide that if the
judge is satisfied as to the truth of the allegations of the petition and there is reasonable
cause for changing the name of the petitioner, "the judge shall so order" the change.
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K.S.A. 60-1402(c). So deciding whether a name change should be granted involves the
exercise of discretion by the district court. As a result, we review such decisions for an
abuse of discretion. See In re Application to Change Name, 10 Kan. App. 2d 625, 628-
29, 706 P.2d 480 (1985). A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the trial court; (2) it is based on an
error of law; or (3) it is based on an error of fact. Wiles v. American Family Life
Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015). This court will not disturb a
discretionary decision unless no reasonable person would have taken the view adopted by
the district court. State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010). That said, to
the extent that this issue turns on questions of statutory interpretation, this court's review
is unlimited. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).
After reviewing the statutes, regulations, and facts of this case, we find that there
are two ways the district court erred in its interpretation of the statute and therefore
abused its discretion. We will examine each in turn.
1. The plain language of K.A.R. 44-12-506 anticipates that inmates retain the right
to change their legal names while incarcerated.
The district court based its denial on Clark's status as an inmate at the time of his
petition. The court concluded that because K.A.R. 44-12-506 required Clark to continue
to use and respond to his convicted name "until his sentence is fully discharged," granting
the name change while he was incarcerated "could lead to the avoidance of legal
obligations." So we begin by examining the text of the regulation at issue.
"In all matters an inmate shall respond to officials when addressed by the name
under which he was committed to the custody of the secretary of corrections until
discharged from sentence. An inmate shall be referred to in all official transactions, and
all correspondence to and from the inmate, under the name used in the journal entry of
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convictions and commitment throughout his or her period of incarceration. In the event of
a legal name change, the records may reflect the new name as an alias and the inmate
may use the alias name in parentheses after the conviction name. All directives to,
references to, or orders to an inmate by his convicted name shall be complied with
regardless of the fact that he or she may have changed his or her name. No charge shall
be made against any inmate under this rule because the inmate is the addressee of any
mail, phone call, document or other communication under the non-conviction name
unless it is alleged and proven that the inmate was [a] knowing and willing conspirator or
instigator of such use of non-conviction name. Violation of this rule shall be a class II
offense." (Emphasis added.) K.A.R. 44-12-506.
We recognize that properly promulgated administrative regulations have the force
and effect of law. K.S.A. 77-425. Clark does not challenge the legality of the regulation
itself, just the district court's interpretation of it. And because KDOC did not object to the
name change petition, appear at the hearing, or file a brief in this case, its interpretation
of the regulation is unavailable for us to consider. In any event, because the interpretation
of an administrative regulation is a question of law, we "owe no deference to an agency's
interpretation of its own regulations and exercise unlimited review." May v. Cline, 304
Kan. 671, 675, 372 P.3d 1242 (2016).
The district court determined that the KDOC regulation required Clark to continue
"using and responding to his convicted name until his sentence is fully discharged."
While that conclusion accurately reflects the first two sentences of the regulation, the rest
of the regulation explicitly references the effect of an inmate legally obtaining a name
change. See K.A.R. 44-12-506. Under the regulation, the inmate's name at the time of
conviction will continue to be used on all records with his or her new legal name added
as an alias, and the inmate must still comply with "[a]ll directives to, references to, or
orders to" his or her convicted name. K.A.R. 44-12-506. As a result, there is nothing in
K.A.R. 44-12-506 that precludes a person from changing his or her name while
incarcerated. Rather, the regulation explicitly provides a direct solution to prevent any
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confusion that may arise when an inmate's current legal name differs from his or her
name at the time of conviction.
To bolster this interpretation, Clark also points out that the Legislature recognizes
an inmate's right to change his or her name in at least two other ways. First, under the
Kansas Offender Registration Act (KORA), criminal offenders must report any name
change within three days to the appropriate law enforcement agency. See K.S.A. 2018
Supp. 22-4905(i). Although it is unclear from the record whether Clark would be subject
to KORA once he is released from incarceration, his point is still valid. The Legislature
expected that criminal offenders subject to KORA might seek to change their names, so it
decided to subject them to a penalty for a registration violation should they fail to report
any name changes. See K.S.A. 2018 Supp. 22-4903.
Second, Clark correctly asserts, although without citing any pertinent authority,
that inmates have a right to marry or divorce while incarcerated. The United States
Supreme Court has long recognized that prisoners retain their fundamental right to marry
even while incarcerated. See Turner v. Safley, 482 U.S. 78, 95-96, 107 S. Ct. 2254, 96 L.
Ed. 2d 64 (1987). Kansas allows individuals to change their names at the time of
marriage and requires a district court to restore a spouse's former name upon divorce if
requested. See K.S.A. 2018 Supp. 23-2506; K.S.A. 2018 Supp. 23-2716. Neither statute
precludes an inmate from changing his or her name by these procedures. Again, if an
inmate changes his or her name while incarcerated as a result of marriage or divorce,
K.A.R. 44-12-506 would require the inmate to continue responding to and using his or
her convicted name until released from incarceration.
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2. The statutory name change provisions do not require a compelling reason to
change one's name.
A district court "shall have authority to change the name of any person, township,
town or city within this state at the cost of petitioner without affecting any legal right."
K.S.A. 60-1401. A petitioner must file a petition in the county in which he or she resides
stating: "(1) That the petitioner has been a resident of the state for at least 60 days,
(2) the reason for the change of name, and (3) the name desired." K.S.A. 60-1402(a).
Notice must be given at the discretion of the court, either by publication under K.S.A. 60-
307 or service by mail to interested parties. K.S.A. 60-1402(b). The statute does not
require the petitioner show a compelling reason for the name change. Instead, it requires
the district court to order the name change if "satisfied as to the truth of the allegations of
the petition, and that there is reasonable cause for changing the name of the petitioner."
K.S.A. 60-1402(c); see In re Application to Change Name, 10 Kan. App. 2d at 626.
The statute is consistent with the common law. Before the Legislature enacted the
current statutory name change provisions, the common law allowed any person to change
his or her name without legal formality by simply using the new name, as long as the
person intended no fraud. See 10 Kan. App. 2d at 626-27. The statutory name change
provisions are "intended as aids and affirmations of the common-law rule and not as an
abrogation or substitution for the informal procedure." 10 Kan. App. 2d at 627.
Here, the district court's findings do not suggest any dissatisfaction with the
truthfulness of the allegations made in Clark's petition. The court agreed that Clark's
primary motivation stemmed from his desire to revert back to his birth name after
reconnecting with his biological father. Instead, the court concluded that Clark's
incarceration precluded him from having "reasonable cause" to change his name. As
already outlined, the district court based that conclusion on a flawed interpretation of the
relevant regulation. Moreover, none of the interested parties objected to or sought to
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prevent the name change. They did not question his motives and appeared to assume the
petition would be granted.
Again, under the plain reading of the statute Clark can seek a name change for any
reason except to avoid legal obligations. There was no evidence presented that Clark was
attempting to avoid any legal obligations by seeking a name change.
For these reasons, the district court abused its discretion when it denied Clark's
name change based on his incarceration. The court incorrectly found that a KDOC
regulation prevented Clark from changing his name while still serving his sentence. This
was an error of law. The plain language of the regulation shows that KDOC anticipated
inmates changing their names and provided a solution in which the inmate must keep
using and responding to his or her convicted name while incarcerated. For these reasons,
we reverse the district court's decision to deny the name change and remand with
directions to grant Clark's request to change his name to Beau Lee Northcutt.
Reversed and remanded with directions.
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