In re: Robert Floyd Brown, Jr. ( 2015 )

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and
Powell, JJ., and Koontz, S.J.
IN RE: ROBERT FLOYD BROWN, JR.
OPINION BY
Record No. 141130 CHIEF JUSTICE DONALD W. LEMONS
April 16, 2015
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Nathan C. Lee, Judge
In this appeal, we consider whether the trial court abused
its discretion in denying an application for a name change
filed under Code § 8.01-217 by Robert Floyd Brown, Jr.
("Brown"). While Brown's appeal to this Court was pending, the
Court granted an appeal in a similar case from a decision of
the same trial judge. That case was styled: In Re: Steven Roy
Arnold (Rec. No. 131447). Pro bono counsel accepted
appointment to represent Arnold and the Attorney General filed
an amicus brief in support of Arnold. Oral argument in
Arnold's case was heard on January 5, 2015. Brown's appeal was
originally considered together with Arnold's appeal. However,
the day before the Court was to render its opinion in Arnold's
case as a combined opinion with Brown's appeal, the Court was
notified that Arnold had committed suicide while incarcerated
in federal prison. Arnold's appeal has been rendered moot.
Brown's appeal remains to be decided, which we do in this
opinion.
I. Facts and Proceedings
On February 8, 2013, Brown filed an application in the
Circuit Court of Prince George County ("trial court") to change
her 1 name to Alicia Jade Brown. Brown has been diagnosed with
Gender Identity Disorder ("GID") and is transitioning from the
male gender to the female gender. Brown is an inmate in a
federal prison located in Petersburg. Attached to Brown's
application was a medical record from the Federal Bureau of
Prisons confirming her diagnosis of GID. The trial court
refused to grant the application, finding no good cause
existed. Brown appealed to this Court, and we granted her
petition for appeal.
We issued an order on December 12, 2013, holding that
there was error in the trial court's order denying Brown's
application. We reversed the judgment of the trial court and
remanded the case to the trial court with direction to enter
judgment in accordance with our holding in Stephens v.
Commonwealth, 274 Va. 157, 645 S.E.2d 276 (2007). Despite the
direction from this Court, the trial court issued an order on
March 26, 2014, in which the trial court again declined to
accept Brown's application, finding that good cause did not
exist because Brown's "stated reasons for the name change do
1
Brown refers to herself using the feminine pronoun. This
opinion will therefore also adopt usage of the feminine pronoun
when referring to Brown.
2
not outweigh the potential negative impact on the community.
Given that the name change reflects a shift in gender identity
of a federal prisoner, the court declines to accept the
application pursuant to Section 8.01-217(A)." Brown appeals
that decision to this Court. Brown's assignment of error to
this Court states:
1. For the second time, upon remand from this Court, the
circuit court erred in denying the application for a
change of name where appellant provided ample evidence of
"good cause" for the application, and the record contained
no evidence of fraudulent purpose within the meaning of
Virginia Code § 8.01-217.
II. Analysis
A. Standard of Review
We apply an abuse of discretion standard when reviewing a
trial court's denial of an application for name change. See
Stephens, 274 Va. at 162, 645 S.E.2d at 278; In re Strikwerda,
216 Va. 470, 473, 220 S.E.2d 245, 247 (1975). We review issues
of statutory interpretation de novo. Warrington v.
Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010).
B. Code § 8.01-217
Code § 8.01-217 governs how the name of a person may be
changed. The General Assembly amended this statute in 2014,
and the amendments went into effect on July 1, 2014. See 2014
Acts ch. 232; Code § 1-214(A). Brown submitted an application
for change of name in 2013, and the trial court denied the
3
application for lack of good cause in 2013, before the
amendments went into effect. However, because the trial court
never accepted Brown's application on the merits, the question
arises regarding which version of Code § 8.01-217 should govern
Brown's application.
Code § 1-239 states:
No new act of the General Assembly shall be
construed to repeal a former law, as to any
offense committed against the former law,
or as to any act done, any penalty,
forfeiture, or punishment incurred, or any
right accrued, or claim arising under the
former law, or in any way whatever to
affect any such offense or act so committed
or done, or any penalty, forfeiture, or
punishment so incurred, or any right
accrued, or claim arising before the new
act of the General Assembly takes effect;
except that the proceedings thereafter held
shall conform, so far as practicable, to
the laws in force at the time of such
proceedings; and if any penalty,
forfeiture, or punishment be mitigated by
any provision of the new act of the General
Assembly, such provision may, with the
consent of the party affected, be applied
to any judgment pronounced after the new
act of the General Assembly takes effect.
We have held that Code § 1-239 applies to accrued rights
categorized as "substantive" or "vested." City of Norfolk v.
Kohler, 234 Va. 341, 345, 362 S.E.2d 894, 896 (1987).
"'[S]ubstantive' rights, as well as 'vested' rights, are
included within those interests protected from retroactive
application of statutes." Shiflet v. Eller, 228 Va. 115, 120,
4
319 S.E.2d 750, 753 (1984). "Substantive rights, which are not
necessarily synonymous with vested rights, are included within
that part of the law dealing with creation of duties, rights,
and obligations, as opposed to procedural or remedial law,
which prescribes methods of obtaining redress or enforcement of
rights." Id. at 120, 319 S.E.2d at 754.
Under the version of Code § 8.01-217 that was in effect in
2013, applications for name changes from probationers and
incarcerated persons could only be accepted if the trial court
found that good cause existed for such an application. Former
Code § 8.01-217(A)(Repl. Vol. 2007)(stating that
"[a]pplications of probationers and incarcerated persons may be
accepted if the court finds that good cause exists for such
application"). However, once a trial court made a
determination that good cause existed for the application, the
trial court was required to order the requested change of name
"unless the evidence show[ed] that the change of name [wa]s
sought for a fraudulent purpose or would otherwise infringe
upon the rights of others." Former Code § 8.01-217(C)(Repl.
Vol. 2007).
The amended version of Code § 8.01-217, effective July 1,
2014, still requires a trial court to make an initial
determination whether good cause exists before accepting an
application for a name change from an incarcerated person.
5
Code § 8.01-217(D). An applicant must still demonstrate that
the change of name is not sought for a fraudulent purpose and
that it would not otherwise infringe upon the rights of others.
However, under the amended version of the statute, now an
applicant must also demonstrate that the change of name "would
not frustrate a legitimate law-enforcement purpose." Id.
We hold that requiring an applicant to prove a new
element, that the name change "would not frustrate a legitimate
law-enforcement purpose," is a substantive change to the
statute. This additional burden of proof affects the duties,
rights, and obligations of a petitioner seeking a name change
who has already established that good cause exists for the name
change. Therefore, retroactive application of the amended
statute is not permitted. Accordingly, Brown's appeal and
application must be decided under the version of Code § 8.01-
217 that was in effect in 2013. 2
Code § 8.01-217(A) does not define what constitutes good
cause for an application for a name change. However, Code §
32.1-269(E) permits a person whose sex has been changed by
medical procedure to request that the State Registrar amend
such person's birth certificate to show a change of sex and
change of name. Code § 32.1-269(E) demonstrates a recognition
2
Unless otherwise indicated, subsequent references to Code
§ 8.01-217 in this opinion refer to the version of that statute
in effect prior to July 1, 2014.
6
by the General Assembly that being transgender and undergoing a
gender and sex change is a valid basis for changing one's name
and amending a person's vital records. Accordingly, the fact
that an applicant is transgender and is changing their name to
reflect a change in their gender identity cannot be the sole
basis for a finding by a trial court that such an application
is frivolous and lacks good cause.
We have already reversed the trial court's finding of no
good cause as to Brown's application on one occasion. Despite
our reversal and direction to the trial court to enter judgment
in accordance with our holding in Stephens, the trial court
again held that good cause did not exist and refused to accept
the application. The trial court found that "the petitioner's
stated reasons for the name change do not outweigh the
potential negative impact on the community. Given that the
name change reflects a shift in the gender identity of a
federal prisoner, the court declines to accept the application
pursuant to Section 8.01-217(A)."
As discussed above, by enacting Code § 32.1-269(E), the
General Assembly has already recognized that a shift in a
person's gender is a valid reason to change one's name and to
amend that person's vital records. There is nothing in the
record to indicate that Brown's name change was sought with
7
frivolous intentions, and the trial court abused its discretion
in holding good cause did not exist.
There is also no evidence in this record that would
support the trial court's holding that this name change would
have any negative impact on the community. The fact that Brown
is a federal prisoner is also not a reason to deny the name
change application under Code § 8.01-217(C). The statute makes
clear that once good cause has been established, the only thing
left for the trial court to consider is whether the evidence
shows that the name change is sought for a fraudulent purpose
or would otherwise infringe upon the rights of others. As
there is no evidence in the record of a fraudulent purpose or
that this name change would infringe upon the rights of others,
the trial court was required to order the change of name.
III. Conclusion
For the reasons stated, we will reverse the judgment of
the trial court and direct the trial court to order the change
of name as requested in Brown's application.
Reversed and remanded.
JUSTICE McCLANAHAN, dissenting.
In my view, the Court's judgment directing the trial court
to order the change of name requested in Brown's application
8
cannot be reconciled with our decision in Stephens v.
Commonwealth, 274 Va. 157, 645 S.E.2d 276 (2007).
In Stephens, this Court ruled that the trial court abused
its discretion in refusing to accept the application for a name
change by an incarcerated person because the trial court's
finding of lack of good cause for the application was not
supported by the evidence in the record. Since we found there
was no basis for the denial of the application for lack of good
cause and the trial court did not consider the application
under former Code § 8.01-217(C), we remanded the case for
further proceedings in accordance with the requirements of that
statute. Id. at 162-63, 645 S.E.2d at 278 (trial court's
denial was an abuse of discretion "requiring reversal and
remand" for the court to "resume its review and consideration
of the petition in accord with the requirements of Code § 8.01-
217(C)").
Our holding in Stephens dictates the same disposition of
this appeal. As in Stephens, the majority holds that the trial
court abused its discretion in refusing to accept Brown's
application, concluding the trial court's finding of lack of
good cause for the application was not supported by the
evidence in the record. Although the trial court did not
consider the application under former Code § 8.01-217(C), the
majority directs the trial court to order the change of name as
9
requested in the application. 1 Pursuant to our decision in
Stephens, this case should be remanded to the trial court with
directions that the trial court resume its review and
consideration of the application.
Additionally, such review and consideration by the trial
court should be governed by the version of Code § 8.01-217 now
in effect. Pursuant to Code § 8.01-1, "all provisions of
[Title 8.01] shall apply to causes of action which arose prior
to the effective date of any such provisions." This general
rule applies unless such a provision "may materially change the
substantive rights of a party (as distinguished from the
procedural aspects of the remedy)." Code § 8.01-1. 2 Likewise,
Code § 1-239 provides that proceedings held after a new act of
the General Assembly takes effect "shall conform, so far as
practicable, to the laws in force at the time of such
proceedings." Therefore, "procedural provisions of the statute
1
In Stephens, the Court refused to grant the very relief
that it grants here. Stephens asserted that because the record
contained no evidence that his change of name was sought for a
fraudulent purpose or would infringe on the rights of others as
specified in former Code § 8.01-217(C), the proper disposition
of his appeal was a remand directing the trial court to grant
his petition. Stephens, 274 Va. at 161, 645 S.E.2d at 277-78.
Since the trial court had not considered the application under
Code § 8.01-217(C), however, the Court rejected Stephens'
position and directed the trial court to resume its review. Id.
at 162-63, 645 S.E.2d at 278.
2
The general rule also does not apply if such provision
"may cause the miscarriage of justice." Code § 8.01-1.
10
in effect on the date of trial control the conduct of trial
insofar as practicable." Smith v. Commonwealth, 219 Va. 455,
476, 248 S.E.2d 135, 148 (1978) (applying predecessor statute,
former Code § 1-16). The revisions made to Code § 8.01-217 in
2014, see 2014 Acts ch. 232, do not affect any substantive
rights of Brown but set forth the procedure to be undertaken by
the trial court in considering Brown's application. 3 See Harris
v. Dimattina, 250 Va. 306, 312, 462 S.E.2d 338, 340 (1995)
(statutory provisions that control only the method of obtaining
redress or enforcement of rights are procedural in nature). 4
Procedural remedies "may be altered, curtailed, or repealed at
3
The procedure for applications filed by persons who
are incarcerated is now contained in Code § 8.01-217(D).
Under that section, if a court accepts the application of
an incarcerated person upon finding good cause, it shall
mail or deliver a copy of the application to the attorney
for the Commonwealth for the jurisdiction where the
application was filed and the attorney for the
Commonwealth for any jurisdiction in the Commonwealth
where a conviction occurred that resulted in the
applicant's probation, registration with the Sex Offender
and Crimes Against Minors Registry pursuant to Chapter 9
(Code § 9.1-900 et seq.) of Title 9.1, or incarceration.
The attorney for the Commonwealth where the application
was filed is entitled to respond and represent the
interests of the Commonwealth at the hearing conducted by
the trial court to consider the application.
4
Although the statute now requires the court to determine
that an incarcerated person's change of name "would not
frustrate a legitimate law-enforcement purpose" when
considering the application, evidentiary burdens are matters of
procedure. Wyatt v. Virginia Dep’t of Soc. Servs., 11 Va. App.
225, 229, 397 S.E.2d 412, 414 (1990) (statutory burdens of
proof are procedural provisions that do not affect substantive
rights).
11
the will of the legislature." Morency v. Commonwealth, 274 Va.
569, 576, 649 S.E.2d 682, 685 (2007) (internal quotation marks
and citation omitted). Thus, the current version of Code §
8.01-217 would govern the proceedings upon remand.
For these reasons, I dissent from the Court's judgment.
12