318 A.2d 639 | Conn. Super. Ct. | 1974
This is an action of mandamus by two married women to compel their local registrars of voters to permit them to register to vote in their maiden names. In the first count the plaintiff Margo Custer alleges that although she was married in 1970 she has never assumed the surname of her husband but has continued without interruption to use her birth name, Margo Custer, in her professional and personal affairs. She further alleges that she has met all of the statutory qualifications for electors of the city of Hartford and the state of Connecticut, but that the defendant registrar of voters of Hartford refused to accept her application for registration in her own name and conditioned her right to register and vote upon her use of her husband's surname — a name which she had never used and did not plan to use in the future. She *387 argues that such a condition upon her right to vote is neither required nor permitted by Connecticut law and that it singles out married women for discriminatory treatment in violation of their fourteenth amendment rights to equal protection of the laws.
In the second count the plaintiff Jane Holdsworth makes essentially the same allegations against the registrars of voters of the city of New London. She also alleges that the New London registrars refused to permit her to register to vote in her own, i.e. maiden, name in reliance upon an opinion of the attorney general, Robert Killian, that a married woman could register only in her husband's surname.
The case was tried to the court. There was no serious dispute as to the facts, and the court finds them essentially as alleged in the complaint. A number of legal issues are presented. They may be briefly summarized as follows: (1) Upon marriage, is a woman required to assume her husband's surname as a matter of law? (2) Does Connecticut law preclude a married woman from registering to vote under her maiden name, even though she has consistently used it as her own before and since her marriage? (3) If so, does such a limitation upon the right to vote constitute an invidious discrimination against women in violation of their fourteenth amendment rights to equal protection of the laws? (4) Is mandamus an appropriate remedy in this case?
It is claimed by the plaintiffs that this practice is the result of social custom and that there is no legal compulsion on a married woman to adopt her husband's name. This claim would appear to be true under the common law of England and Canada. 12 Halsbury, Laws of England (3d Ed.) p. 410; W. K. Power, The Law and Practice Relating to Divorce and Other Matrimonial Causes in Canada (2d Ed.) pp. 357-58; Re Dalgleish Estate, [1956] 18 W.W.R. (n.s.) 519, [1956] 4 D.L.R.2d 111. The rule is thus stated in 19 Halsbury's Laws of England (3d Ed.), p. 829: "When a woman on her marriage assumes, as she usually does in England, the surname of her husband in substitution for her father's name, it may be said that she acquires a new name by repute. The change of name is in fact, rather than in law, a consequence of the marriage."
This approach, that a woman voluntarily adopts her husband's surname by social custom but is under no legal compulsion to do so, is also supported by some of the more recent American cases. Stuart v. *389 Board of Supervisors of Elections,
This issue is one of first impression insofar as our Connecticut courts are concerned.
It has been generally stated that while Connecticut has not formally adopted English common law, it has been made our own by "practical adoption," unless modified by legislation, and with such exceptions as diversity of circumstances and customs requires. Bassett v. City Bank Trust Co.,
There is nothing in the English common-law rule unsuited to the customs and conditions of American society — particularly at this time in our history. The rule that requires a woman to assume her husband's surname upon marriage made some sense in an age where a married woman could not contract, hold property or sue or be sued except through her husband. "[H]usband and wife are one, [and] the one is the husband." United States v. Yazell,
It is doubtless true that the vast majority of women will continue to follow the social custom of our times and adopt their husbands' surnames. That fact, however, provides no basis for a rule of law which would mandate it despite personal, professional or business reasons which would motivate individual women to do otherwise. Some hear a different drummer and step to the music which they hear, however measured or far away. There is nothing in the common law of Connecticut which forbids it. The court therefore concludes that the common-law right of a person to the use of a name, a right enunciated by our Supreme Court in Don
v. Don,
"Sec.
"Sec. 46-21. Alimony and change of name. The superior court may assign to any woman divorced by such court a part of the estate of her husband and, in addition thereto or in lieu thereof, may order alimony to be paid from the husband's income, maychange her name and may order alimony pendente lite to be paid to the wife in any complaint or cross-bill for divorce pending in said court. . . . [italics supplied]."3
The defendants claim that the clear implication of these statutes is that a woman's name automatically changes upon marriage. Otherwise, they argue, there would be no need for the italicized provision authorizing a change of name for a woman after divorce, and this would be counter to the presumption that the General Assembly had a purpose for every sentence, clause or phrase in a statute. State
v. Springer,
Section
The defendants make the same arguments for the interpretation of these sections as they did with respect to the sections discussed in subpart A of this memorandum, but they concede, as indeed they must, that these sections do not specifically state what name a married woman must use in applying for admission as an elector. While the defendants *393
testified that for their purposes they interpreted the sections as mandating the name change in their cities of Hartford and New London, at least since the attorney general so ruled on September 8, 1972, there was no evidence that this was a long-standing and uniform administrative interpretation throughout the 169 cities and towns of Connecticut. It therefore is not entitled to be treated as "cogent evidence" of legislative intent by the court. Instituteof Living v. Hartford,
The defendants cite People ex rel. Rago v. Lipsky,
This court is persuaded by the latter authority. As a question of statutory construction, this result is consistent with the social conditions of our times and not in derogation of the common-law principles discussed in part I of this memorandum. The court's *394
conclusion is also buttressed by the fact that its construction of the statute is in harmony with the constitutional requirements urged upon the court and discussed in part III herein. Such harmony is an appropriate consideration in the construction of a statute. Adams v. Rubinow,
The obligation of the respective registrars under §
Whether such a classification based upon sex can pass constitutional muster under the equal protection cases is the issue here. In general, the Supreme Court decisions have been broken down into two separate approaches. In most instances, a classification will be upheld if it rests upon some rational basis not wholly irrelevant to the achievement of *395
some permissible state purpose. McGowan v. Maryland,
The question arises therefore whether sex is a "suspect" classification.5 While a majority of the Supreme Court has not decided this issue, the court has moved perceptibly in several recent cases toward a more rigorous examination of any legitimate governmental interest in a classification based upon sex. Thus in Reed v. Reed,
In general, a writ of mandamus issues when the duty which is sought to be enforced is the performance of a definite act of a ministerial nature with respect to which the respondent has no discretion, when the right of the person applying for it is clear and when he is without other adequate remedy.Cleary v. Zoning Board,
The obligation of registrars to register as a voter any applicant who possesses the statutory qualifications under his or her own legal name is most certainly a ministerial and not a discretionary one. There is nothing in the statutes authorizing the registrars to add to the statutory qualifications for voters or to use their discretion to refuse anyone who meets these qualifications. In an analogous situation, our Supreme Court has held that electors who met the statutory qualifications were entitled to be enrolled on a party enrollment list and could enforce that right by an action in the nature of mandamus.In the Matter of Gilhuly's Petition,
Nor will the duty to the plaintiffs become a discretionary one because the parties differ on the merits of the issues involved. "The fact that a judicial interpretation may be necessary to enunciate the duty more specifically will not of itself *398
preclude coercion of the duty by a writ of mandamus."State ex rel. Heimov v. Thomson,
The right of the plaintiffs to continue to use their maiden names as their legal and only true names was discussed and approved for the reasons earlier set forth in this opinion. Granting this conclusion, which the court has already reached, and there being nothing in the election laws to the contrary, the plaintiffs have established a clear legal right to compel the registrars to accept their applications for registration under their own (i.e. maiden) names. Nor do the plaintiffs have any other adequate remedy. A declaratory judgment, for example, would "involve circuity of action and delay, and fall short of affording the . . . [plaintiffs] a means of effectively, conveniently and directly enforcing the performance of the particular duty owing to . . . [them]." State ex rel. Heimov v. Thomson, supra, 14.
For all of the foregoing reasons it is the conclusion of the court that the plaintiffs are entitled to the relief prayed for in their complaint and a writ of mandamus may issue accordingly.