“K“, Respondent, v. HEALTH DIVISION, Petitioner.
(TC - C-2180, SC - 24723)
In the Supreme Court of the State of Oregon
Argued February 9, reversed March 3, 1977
277 Or. 371 | 560 P.2d 1070
Before Denecke, Chief Justice, and Holman, Tongue, Howell, Lent, Linde and Bradshaw, Justices.
TONGUE, J.
Denecke, C. J., specially concurring.
The original petitioner, a transsexual person, filed in Multnomah County a petition for a certificate for change of sex from female to male and “that birth and school records should be changed in accordance with such certificate.”
That court entered an order which not only granted the petition for change of name but entered a further order, over the objection on special appearance by the State Board of Health, that “a new birth certificate shall be issued to petitioner by the State Board of Health * * * designating the sex as male and the name as” K.1
The Court of Appeals affirmed that order on appeal by the State Board of Health, which has petitioned this court for review of that decision. 26 Or App 311 (1976). We granted review because of doubts as to its correctness.
Petitions for change of name are controlled by statutes,
however, by
Despite the recognition by the Court of Appeals of specific statutory provisions for the issuance of new birth certificates under the circumstances provided by these statutes, and the admitted lack of any statute providing for the issuance of new birth certificates upon the change of names of transsexuals, the major
“The acceptance for filing of any certificate by the State Registrar more than six months after the time prescribed for its filing, and any alterations of such certificate after it is filed with the State Registrar, shall be subject to regulations in which the division shall prescribe in detail the proofs to be submitted by any applicant for delayed filing or an alteration of a certificate, or to the order of the county court or any other court of competent jurisdiction.‘” (Emphasis in Court of Appeals opinion)
In reaching that result the majority of the Court of Appeals quoted from decisions by this court to the effect that even when “seemingly unambiguous language,” if applied literally, would reach a result “so at variance with the apparent policy of the legislation” as to be clearly unreasonable or absurd, the court must “look beyond the words” of the statute so as to “give effect to the intent” of the legislature, at least “[w]hen such an intent is manifest,” quoting from Johnson v. Star Machinery Co., 270 Or 694, 703-04, 705-06, 530 P2d 53 (1974).
The difficulty with the application of such a rule in this case is that it has not been demonstrated, by legislative history or otherwise, that it would be “at variance with the apparent policy” of either the legislature or the State Board of Health to deny the issuance of a “new birth certificate” to a transsexual, thereby changing the designation of sex, as well as the original given name, from female to male. Much less has it been demonstrated that in the adoption of
In our opinion, it is at least equally, if not more reasonable, to assume that in enacting these statutes it was the intent of the legislature of Oregon that a “birth certificate” is an historical record of the facts as they existed at the time of birth, subject to the specific exceptions provided by statute. This was also the view
The majority of the Court of Appeals, however, appears to view a “birth certificate” as a record of facts as they presently exist, and thus as a record subject to change by order of a court by the issuance of a “new birth certificate” upon proof of any subsequent changes in the facts as recorded in the original birth certificate, including subsequent changes in sex.5
In our opinion, it is not for this court to decide which view is preferable. On the contrary, we hold that this is a matter of public policy to be decided by the Oregon legislature. We also believe that it is by no means clear that it was the “apparent” much less “manifest” intent of the Oregon legislature in enacting
For these reasons the decision by the Court of Appeals is reversed.
DENECKE, C. J., specially concurring.
I concur in the majority‘s opinion that the Court of Appeals erred. I specially concur to express my opinion that this is not the type of case in which we should
Shortly after the Oregon Court of Appeals originated, we adopted some very general standards for passing on petitions for review:
“The following, while neither controlling nor measuring the court‘s discretion, indicate the character of the reasons which will be considered in granting or denying the petition:
“(1) Where the Court of Appeals has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with the applicable decisions of the Supreme Court.
“(2) Where judges of the Court of Appeals concur in a result but are unable to agree upon a common ground of decision.
“(3) Where a question of great public importance is involved which urgently requires prompt adjudication.
“(4) Where the judgment or decree of the Court of Appeals is final as distinguished from interlocutory in character.” Note, Rules of Procedure, Supreme Court and Court of Appeals of the State of Oregon (1971).
These standards were abandoned three years after their adoption. We now have no published policy stating what factors we will consider in passing on petitions for review.
In our new Rules of Procedure we have provided that the petition for review shall contain “A statement of concrete reasons apart from those asserted for reversal, explaining why the issues presented have importance beyond the particular case and require decision by the Supreme Court.” Rules of Procedure, Rule 10.05 (1977).
Whether any court of final review will grant a petition for review depends largely upon the view that court takes of its function. If the court believes its function is to correct errors it will grant a petition for review any time it is of the opinion that further
I view this court, in considering petitions for review, to be primarily a law-announcing body, not an error-correcting court. I take this view not because of any exalted notions of the capabilities of this court, but because of judicial efficiency. We can competently decide only so many cases and we should limit ourselves to those cases which are of the most overall importance. Traynor, Some Open Questions on the Work of State Appellate Courts, 24 Chi L Rev 211 (1957); To Hear or Not to Hear: A Question for the California Supreme Court, 3 Stan L Rev 243 (1951).
I know, however, from experience that on occasion even a court which primarily considers itself a law-announcing court will grant a petition for review regardless of the lack of public importance of the case because of its opinion that error probably was committed. It will grant the petition because a party has suffered injury if there was error. This is particularly true if the legislature is not likely to change the law probably erroneously decided by the court, and future parties will be unjustly injured. In my opinion such action is completely appropriate. Judicial efficiency must yield to the prevention of injustice.
Based upon this criteria, I would not have granted the petition for review in this case.
Whether a person born in Oregon can have his or her birth certificate changed to reflect a sexual change does not in my opinion present any issue of importance. I am further of the opinion that there is no demand for a decision of this court delineating generally when a birth certificate can be changed. If I am mistaken in either of these opinions, the legislature
I would dismiss the petition.