Henne ex rel. Henne v. Wright

904 F.2d 1208, 1990 WL 67414

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 23, 1990
• Docket: No. 89-1919
• Status: Published

Opinions

BRIGHT, Senior Circuit Judge.

Defendants Dr. Gregg F. Wright, M.D., Director of the Nebraska Department of Health, and Stanley S. Cooper, Director of the Nebraska Bureau of Vital Statistics, appeal the judgment of the district court granting plaintiffs Debra Henne and Linda Spidell declaratory and injunctive relief from a Nebraska statute that restricts the choice of surnames that can be entered on an infant’s birth certificate.¹ Plaintiffs brought this action under 42 U.S.C. § 1983 individually and as next friends to their daughters alleging that Neb.Rev.Stat. § 71-640.01 (1986) unconstitutionally infringes their fundamental fourteenth amendment right to choose surnames for their daughters other than those prescribed. The defendants appeal, contending that the district court erred in the following respects: (1) plaintiffs lack standing; (2) plaintiffs failed to join certain parties necessary for a just adjudication under Fed.R.Civ.P. 19(a); and (3) Neb.Rev.Stat. § 71-640.01 does not unconstitutionally infringe a fundamental right. We reject defendants’ first two contentions but are persuaded by the third and therefore reverse.

I. BACKGROUND

On April 4, 1985, Debra Henne gave birth to Alicia Renee Henne at a hospital in Lincoln, Nebraska. Following Alicia’s birth, Debra completed a birth certificate form at the request of a hospital employee. Debra listed Gary Brinton as the father and entered the name Alicia Renee Brinton in the space provided for the child’s name. Brinton, also present at the hospital, completed and signed a paternity form.

At the time of the birth, Debra was still married to Robert Henne. Although Debra and Robert Henne had filed for a divorce prior to Alicia’s birth, the decree dissolving the marriage did not become final until after the birth. As a result of her marital status, hospital personnel, acting on instructions from the Department of Health, informed Debra that she could not surname her daughter “Brinton.” Debra then filled out a second birth certificate form, entering the child’s name as Alicia Renee Henne and leaving blank the space provided for the father’s name. Robert Henne has never claimed to be Alicia’s father and, pursuant to the divorce decree, pays no child support for her.

Almost three years later, on February 4, 1988, Debra Henne went in person to the Bureau of Vital Statistics of the Nebraska Department of Health and requested that Alicia’s surname be changed to Brinton and that Gary Brinton be listed on the birth certificate as the father. Debra produced a signed statement personally acknowledging Gary Brinton as Alicia’s biological father. She also presented a signed acknowledgement of paternity from Gary Brinton and a letter from him requesting that the birth certificate be changed. Personnel at the Bureau of Vital Statistics, acting indirectly at the direction of defendants Cooper and Wright, denied Debra’s request. Other than her visit to the Bureau of Vital Statistics and this action, Debra has made no attempt to change Alicia’s surname.

On June 17, 1988, at St. Elizabeth’s Hospital in Lincoln, Nebraska, Linda Spidell gave birth to a daughter, Quintessa Martha Spidell. Linda wished to give Quintessa the surname “McKenzie,” the same surname as her other two children, who were born in California. Hospital personnel, acting upon instructions from the Department of Health, informed Linda that Quintessa could not be surnamed McKenzie and that if Linda did not complete the birth certificate form the hospital would enter Quintes-sa’s last name as Spidell. Linda completed the form, entering “Spidell” as Quintessa’s surname and leaving blank the space provided for the father’s name.

Linda surnamed her other children McKenzie simply because she liked that name and not because of any familial connection. For that reason, and because she wishes all three children to share the same name, she wants Quintessa surnamed McKenzie. Linda was not married at the time of Quintessa’s birth or at the time of this action and there has been no judicial determination of paternity. At trial, however, both Linda and Ray Duffer, who lives with Linda.and her children, testified that Duffer is Quintessa’s biological father. Other than this action, Linda has made no attempt to change Quintessa’s surname.

Defendant Dr. Gregg F. Wright heads the Nebraska Department of Health. The Nebraska Department of Health assists the governor in executing and administering certain laws, including Neb.Rev.Stat. § 71-640.01, the law at issue in this action. Defendant Stanley S. Cooper directs the Bureau of Vital Statistics of the Nebraska Department of Health. In this capacity he ensures that all birth records are filed and maintained in accordance with the laws of Nebraska, including section 71-640.01.

These defendants and the Nebraska Department of Health are responsible for furnishing forms and instructions for use in completing birth certificates to hospitals throughout Nebraska. These birth certificate forms and instructions implement Neb.Rev.Stat. § 71-640.01, which restricts the choice of surnames that can be entered on a birth certificate. Hospital personnel and Nebraska authorities denied plaintiffs their choice of surnames pursuant to this statute.

Debra Henne brought this suit on behalf of herself and her minor child Alicia Renee Henne in federal district court against defendants Wright and Cooper in their official capacities, alleging that Neb.Rev.Stat. § 71-640.01, as implemented and enforced by defendants, violated the Federal Constitution. Linda Spidell later intervened as an additional plaintiff on her own behalf and on behalf of her minor child Quintessa Martha Spidell.

Following a bench trial, the court ruled that the constitutional right to privacy protects a parent’s right to name his or her child. The court did not specifically identify the appropriate level of scrutiny by which to examine Neb.Rev.Stat. § 71-640.01. The court held that the justifications for the statute asserted by the defendants failed to satisfy even a minimal level of constitutional scrutiny. Accordingly, the court entered judgment declaring section 71-640.01 unconstitutional, enjoining its enforcement and ordering defendants to change the names on Alicia’s and Quintessa’s birth certificates. Defendants timely appealed, moving for a stay of the judgment pending appeal. The district court denied the motion but this court subsequently granted a stay pending disposition on appeal.

II. DISCUSSION

Defendants argue (1) that the plaintiffs lack article III standing, (2) that plaintiffs failed to join certain necessary parties under Fed.R.Civ.P. 19(a) and (3) that the district court erred in holding Neb.Rev. Stat. § 71-640.01 unconstitutional. We address these arguments in turn.²

A. Article III Standing

Standing refers to the article III requirement that federal courts only adjudicate actual, ongoing cases or controversies. In order to have article III standing, the plaintiffs must allege an actual or threatened injury in fact as a result of defendants’ conduct. In addition, the injury alleged must be fairly traceable to the defendants’ conduct and must be likely to be redressed by a favorable decision of the court. Belles v. Schweiker, 720 F.2d 509, 513 (8th Cir.1983) (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)).

Here defendants argue that plaintiffs lack standing because the alleged constitutional injury did not result from defendants’ conduct but from the conduct of unnamed hospital personnel. We reject this contention. The plaintiffs have alleged that their constitutional right to choose surnames for their children has been infringed by defendants’ enforcement and administration of Neb.Rev.Stat. § 71-640.01. Because defendants furnish the forms and instructions by which hospital personnel in Nebraska effect the surname restrictions, plaintiffs’ action directly challenges the conduct of defendants. See Amended Complaint 111116, 17; Complaint of Intervenor ¶¶ 16, 17.

Defendants also argue that plaintiffs’ injury resulted not from defendants’ conduct but from plaintiffs’ failure to obtain judicial determinations of paternity. Defendants therefore contend that the required causal connection between the challenged conduct and plaintiffs’ injury has not been established. With respect to Linda Spidell, the statute prohibits her from giving Quintessa the surname McKenzie even with a judicial determination of paternity. Moreover, the gravamen of plaintiffs’ constitutional claim is that they have a right to choose surnames for their daughters without clearing legal hurdles imposed by the state, such as paternity proceedings. The existence of other avenues by which the plaintiffs may exercise their rights might bear on whether plaintiffs have suffered constitutional injury, but it does not bear on the threshold question of standing.

Defendants further contend that plaintiffs could use the desired surnames without holding the statute unconstitutional. This simply represents a reformulation of the previous argument and we reject it for the same reasons. Plaintiffs have alleged sufficient injury in fact to bring this action in federal court.

B. Necessary Parties

Defendants next argue that the district court erred by entering judgment ordering the surnames changed on the birth certificates without first requiring joinder of necessary parties under Fed.R.Civ.P. 19(a).³ Specifically, defendants contend that Alicia’s name could not be changed without first joining the presumed father (Robert Henne), the putative father (Gary Brinton) and a guardian ad litem to protect Alicia’s interests. Defendants raised this argument prior to trial and the district court ruled that in the absence of these parties it could nevertheless grant the other relief requested if plaintiffs prevailed on their constitutional claim. The plaintiffs did prevail before the district court and, despite its earlier ruling, in addition to declaring the statute unconstitutional and enjoining its enforcement, the court ordered the names changed.

Defendants apparently concede that the district court had jurisdiction to declare the statute unconstitutional and enjoin its enforcement without requiring the joinder of any absent parties.⁴ Thus, the only issue presented is whether the district court erred in not requiring the joinder of the absent parties before ordering the names changed. We need not enter this thicket because, as discussed in the next section, we reject plaintiffs’ constitutional claim.

C. Fundamental Right

Defendants contend that the district court erred in holding Neb.Rev.Stat. § 71-640.01⁵ unconstitutional. The district court held that an extension of the fourteenth amendment right of privacy protects a parent’s right to name his or her child and that the statute failed to survive even minimal scrutiny. We determine that the fourteenth amendment right of privacy does not protect the specific right at issue here and that the statute rationally furthers legitimate state interests.

This case presents the issue whether a parent has a fundamental right to give a child a surname at birth with which the child has no legally established parental connection. We frame the issue this way because each plaintiff wishes to enter on her daughter’s birth certificate a surname proscribed by section 71-640.01. Debra Henne wishes to enter the surname of the alleged father (Brinton) without first obtaining a judicial determination of paternity. Linda Spidell wishes to enter a surname (McKenzie) with which her daughter has no connection other than that Linda has already given that name to her two other children. We note, however, that while section 71-640.01 requires that a child have some legally established parental connection to the surname entered on the birth certificate,⁶ it does not prevent either plaintiff from ever giving her daughter the desired surname.⁷ The district court overlooked this important distinction in characterizing the issue as whether parents generally possess a fundamental right to name a child. This case does not present that broad issue.

Whether there is a fundamental right to give a child a surname at birth with which the child has no legally established parental connection will dictate the appropriate level of constitutional scrutiny for evaluating Neb.Rev.Stat. § 71-640.01. Specifically, if the statute significantly infringes a right deemed fundamental under the fourteenth amendment right of privacy then we must rigorously scrutinize the asserted justifications for the statute. See Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 679, 54 L.Ed.2d 618 (1978); Woods v. Holy Cross Hosp., 591 F.2d 1164, 1176 (5th Cir.1979). Otherwise, we analyze the statute under the highly deferential rational basis standard of review applicable to most economic and social legislation challenged under the fourteenth amendment. See Williamson v. Lee Optical, Inc., 348 U.S. 483, 486-88, 75 S.Ct. 461, 463-64, 99 L.Ed. 563 (1955); Scott v. City of Sioux City, 736 F.2d 1207, 1216 (8th Cir.1984), cert. denied, 471 U.S. 1003, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985).

We now turn to the question whether the right at issue is fundamental. A long line of Supreme Court eases have established that “liberty” under the fourteenth amendment encompasses a right of personal privacy to make certain decisions free from intrusive governmental regulation absent compelling justification. See, e.g., Zablocki v. Redhail, 434 U.S. at 374, 98 S.Ct. at 673 (fundamental right to marriage); Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (fundamental right to live with relatives); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (fundamental right to an abortion); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (fundamental right to interracial marriage). Two of the earliest right to privacy cases, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (fundamental right to instruct a child in a foreign language), and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (fundamental right to send child to a non-public school), established the existence of a fundamental right to make child rearing decisions free from unwarranted governmental intrusion. See Roe v. Wade, 410 U.S. at 153, 93 S.Ct. at 727. Meyer and Pierce do not, however, establish an absolute parental right to make decisions relating to children free from government regulation. See Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (“[Njeither rights of religion nor rights of parenthood are beyond limitation”); Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972) (state has legitimate interest in separating neglectful parents from child); Jehovah’s Witnesses v. King County Hosp., 278 F.Supp. 488, 504 (W.D.Wash.1967) (three judge panel) (state may intervene in parents’ religiously motivated decision refusing medically necessary blood transfusion for children), aff'd, 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968) (per cu-riam).

In determining whether a right not enumerated in the Constitution qualifies as fundamental, we ask whether the right is “deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, 431 U.S. at 503, 97 S.Ct. at 1938. We proceed cautiously in this area of the law, ever mindful that the judiciary “is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” Id. at 544, 97 S.Ct. at 1958 (White, J., dissenting).

While Meyer and Pierce extended constitutional protection to parental decisions relating to child rearing, the parental rights recognized in those cases centered primarily around the training and education of children. For example, the law at issue in Meyer prevented parents from having their children taught in a foreign language, 262 U.S. at 396-403, 43 S.Ct. at 626-28, and the law at issue in Pierce prevented parents from sending their children to non-public schools, 268 U.S. at 529-36, 45 S.Ct. at 571-74. By contrast, the parental decision in this case relates to the choice of a child’s surname. This subject possesses little, if any, inherent resemblance to the parental rights of training and education recognized by Meyer and Pierce. Thus, as the district court rightly recognized, constitutional protection for the right to choose a non-parental surname at birth must flow, if at all, from an extension of Meyer and Pierce. Furthermore, any logical extension of Meyer and Pierce has to be grounded in the tradition and history of this nation. See Moore v. City of East Cleveland, 431 U.S. at 503, 97 S.Ct. at 1938; Bowers v. Hardwick, 478 U.S. 186, 192, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986). Given this standard, we necessarily conclude that plaintiffs have presented no fundamental right.

The custom in this country has always been that a child born in lawful wedlock receives the surname of the father at birth, see, e.g., Secretary of the Commonwealth v. City of Lowell, 373 Mass. 178, 366 N.E.2d 717, 725 (1977); Firman v. Firman, 187 Mont. 465, 610 P.2d 178, 181 (1980); Sobel v. Sobel, 46 NJ.Super. 284, 134 A.2d 598, 600 (Ch.Div.1957); Smith v. United States Cas. Co., 197 N.Y. 420, 90 N.E. 947, 948 (1910); Kay v. Bell, 95 Ohio App. 520, 121 N.E.2d 206, 208 (1953); Doe v. Dunning, 87 Wash.2d 50, 549 P.2d 1, 3 (1976); see generally 57 Am.Jur.2d Name §§ 2, 3 (1988); 65 C.J.S. Names § 3 (1966), and that a child born out of wedlock receives the surname of the mother at birth, see, e.g., Buckley v. State, 19 Ala.App. 508, 98 So. 362, 363 (1923); Donald J. v. Evna M.W., 81 Cal.App.3d 929, 147 Cal.Rptr. 15, 19 (1978); Pintor v. Martinez, 202 S.W.2d 333, 335 (Tex.Civ.App.1947).

While some married parents now may wish to give their children the surname of the mother or a hyphenated surname consisting of both parents’ surname, and some unmarried mothers may wish to give their children the surname of the father, we can find no American tradition to support the extension of the right of privacy to cover the right of a parent to give a child a surname with which that child has no legally recognized parental connection. Plaintiffs therefore have not asserted a right that is fundamental under the fourteenth amendment right of privacy and Neb.Rev. Stat. § 71-640.01 need only rationally further legitimate state interests to withstand constitutional scrutiny.

The district court in this case held that section 71-640.01 failed to survive even minimal scrutiny. Other federal courts reviewing statutes restricting the choice of surnames have taken similar positions. Sydney v. Pingree, 564 F.Supp. 412, 413 (S.D.Fla.1982); O’Brien v. Tilson, 523 F.Supp. 494, 496 (E.D.N.C.1981); Jech v. Burch, 466 F.Supp. 714, 721 (D.Hawaii 1979). Nevertheless, for the reasons discussed below, we determine that the Nebraska statute passes minimal scrutiny, i.e., the rational basis test.

A law must be upheld under the rational basis test unless it bears no rational relation to a legitimate state interest. United States v. Fogarty, 692 F.2d 542, 547 (8th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1434, 75 L.Ed.2d 792 (1983). “ 'It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.’ ” Id. (quoting Williamson v. Lee Optical, Inc., 348 U.S. at 488, 75 S.Ct. at 464).

We determine that the law rationally furthers at least three legitimate state interests: the state’s interest in promoting the welfare of children, the state’s interest in insuring that the names of its citizens are not appropriated for improper purposes and the state’s interest in inexpensive and efficient record keeping. Specifically, a reasonable legislature could believe that in most cases a child’s welfare is served by bearing a surname possessing a connection with at least one legally verifiable parent. Furthermore, the legislature could reasonably perceive that in the absence of a law such as section 71-640.01, the name of a non-parent could be improperly appropriated to achieve a deliberately misleading purpose, such as the creation of a false implication of paternity. Finally, the legislature could reasonably conclude that it is easier and cheaper to verify and index the birth records of a person who has a surname in common with at least one legally verifiable parent. The district court’s review of the evidence buttresses this conclusion. 711 F.Supp. at 515.⁸ Although the Nebraska legislature could perhaps tailor the statute to more closely serve these purposes, we cannot say that section 71-640.01 bears no rational relationship to the state’s legitimate interests. We therefore reject plaintiffs’ contention that Neb.Rev.Stat. § 71-640.01 unconstitutionally restricts their parental rights.

III. CONCLUSION

Accordingly, the district court’s judgment is reversed.

1 . The district court’s opinion is reported. Hen-ne v. Wright, 711 F.Supp. 511 (D.Neb.1989).

2 . In their reply brief, defendants also argue that they cannot be sued in their official capacities as "persons” under 42 U.S.C. § 1983. In an action for prospective relief such as this, however, state officials sued in their official capacity are treated as "persons" under section 1983. Will v. Michigan Dept. of State Police, — U.S. —, 109 S.Ct. 2304, 2311-12 n. 10, 105 L.Ed.2d 45 (1989). Cf. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (state official sued for prospective relief on constitutional grounds not shielded by eleventh amendment).

3 . Fed.R.Civ.P. 19(a) states:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

4 . The requirement under Rule 19(a)(1) that complete relief be available does not mean that every type of relief sought must be available, only that meaningful relief be available. 3A J. Moore, J. Lucas & G. Grotheer, Jr., Moore’s Federal Practice ¶| 19.07 — 1[1] (2d ed. 1989). In this case, meaningful relief consisted of a declaratory judgment and a prohibitory injunction. The district court could grant this relief without impairing the absent parties’ ability to protect their interest under Fed.R.Civ.P. 19(a)(2)(i) because the defendants are making every argument on the merits that the absent parties would or could make, Rochester Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006, 1016 (8th Cir.1984). Finally, with respect to the declaratory judgment and the prohibitory injunction, there was no chance that the defendants would be subject to multiple or inconsistent obligations as a result of any interests claimed by the absent parties. Fed.R.Civ.P. 19(a)(2)(ii).

5 .Section 71-640.01 states:

The information pertaining to the name of an infant born in this state and reported on a birth certificate, filled out and filed pursuant to sections 71-601 to 71-648, shall comply with the following:

(1) If the mother was married at the time of either conception or birth of the child, or at any time between conception and birth, the name of such mother's husband shall be entered on the certificate as the father of the child and the surname of the child shall be entered on the certificate as being (a) the same as that of the husband, unless paternity has been determined otherwise by a court of competent jurisdiction, (b) the surname of the mother, (c) the maiden surname of the mother, or (d) the hyphenated surname of both parents;

(2) If the mother was not married at the time of either conception or birth of the child, or at any time between conception and birth, the name of the father shall not be entered on the certificate without the written consent of the mother and the person named as the father, in which case and upon the written request of both such parents the surname of the child shall be that of the father or the hyphenated surname of both parents;

(3) In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father shall be entered on the certificate in accordance with the finding of the court and the surname of the child may be entered on the certificate the same as the surname of the father;

(4) In all other cases, the surname of the child shall be the legal surname of the mother; and

(5) If the father is not named on the certificate, no other information about the father shall be entered thereon.

6 . Thus, Alicia Henne could have been given her mother's surname, her mother's maiden surname or the surname of the presumed father, but not the surname of the alleged father without a judicial determination of paternity. Neb. Rev.Stat. § 71-640.01(1). Quintessa Spidell could have been given her mother's surname, id. § 71-640.01(4), the surname of a person named as the father if that person requested so in writing, id. § 71-640.01(2), or the surname of a person found by a court of competent jurisdiction to be the father, id. § 71-640.01(3).

7 . Debra Henne could enter the surname Brinton on her daughter’s birth certificate by obtaining a judicial determination of paternity on the part of Gary Brinton. Neb.Rev.Stat. § 71-640.01(l)(a). Linda Spidell could enter the surname McKenzie on her daughter’s birth certificate only by first changing her own surname to McKenzie. Nebraska law provides a procedure, however, whereby either child's name could later be changed. Neb.Rev.Stat. §§ 61-101 to 61-104 (1986). See also Spatz v. Spatz, 199 Neb. 332, 258 N.W.2d 814 (1977). Moreover, under Nebraska law any civil action can be brought in forma pauperis if necessary. Neb.Rev.Stat. §§ 25-2301 to 25-2310 (1986 & Supp.1988).

8 . The district court noted that the defendants offered evidence that section 71-640.01 promotes inexpensive and efficient indexing and access of birth records. Nevertheless, the court stated that "[i]n keeping with the admonishment of [Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972)], I find that the state’s interest in efficiency and cost savings loses its legitimacy when compared to the constitutional right at issue here.” 711 F.Supp. at 515. In Stanley, the Supreme Court in effect ruled that the state’s interests in administrative efficiency did not withstand heightened scrutiny. Here, however, defendants need only demonstrate that the law rationally furthers legitimate state interests.