A rose by any other name? Name change statute in for some big changes

HB 5164 has passed the House and, having been reported out of the Senate Executive Committee on a party line vote, stands on the cusp of passage in the Senate, set for its Third Reading as of November 20.

The bill would significantly alter Article XXI of the Code of Civil Procedure, 735 ILCS 5/21-101 et seq.

As a practical matter, subject to certain statutory exceptions, a person could always seek a name change from our courts. If one keeps the new name long enough (three years, though married women may face additional hurdles), one may even be elected to the Circuit Court bench. (A name change for a judicial candidate, however, as we have seen recently, carries with it no guarantee of judicial retention.)

Courts have typically denied name change petitions if there was a suspicion that the person seeking the name change was doing so to avoid creditors: If the real reason John Smith wants to change his name to Sam Jones is to avoid collection proceedings brought by Messrs. MasterCard and Visa, what Smith is inviting the court to do is to become a co-conspirator in his attempted fraud on his creditors. Courts don't like that. Courts aren't supposed to like that. We don't want our courts to aid and abet fraudsters.

For this reason, Section 21-103 of the Code of Civil Procedure, has provided that notice be made by publication of any proposed name change. There were certain exceptions to the publication provision provided for under the existing law, but Section 15 of HB 5164 would repeal the publication requirement entirely. MasterCard and Visa won't have even the possibility of knowing, now, if John Smith is trying to change his name to avoid paying his bills.

Well, you say, MasterCard and Visa don't need publication. Our biggest banks know more about us generally, and probably about John Smith in particular, than we care to think about. But what about Harry and Harriet Homemaker, senior citizen bungalow owners, who hire Joe Doaks to build a back porch on their home? Joe takes their substantial down payment and disappears, filing to change his name along the way. They, or their lawyer, may not see the publication notice in the Law Bulletin. But at least there would be a chance.

Publication serves a purpose.

Admittedly, in the present age, where print media seems to be dying, a published notice may not be as effective as it once was. If someone has a better alternative, contact your state legislator immediately. But abandoning publication altogether is going to have unintended, and unfortunate, consequences.

The reason HB 5164 proposes to do away with publication is because it will erect still another roadblock (a wall, if you will) against federal enforcement of immigration laws.

This is consistent with the language of new Section 21-103.8. In the current version of HB 5164, this section provides (emphasis supplied):

(a) A petitioner may file a request to have the petitioner's court file impounded by filing a statement, verified under oath as provided under Section 1-109 of this Code, that the person believes that public disclosure would be a hardship and have a negative impact on the person's health or safety to include, but not be limited to, that the person is transgender, an adoptee, a survivor of domestic or intimate partner abuse, a survivor of gender-based violence, a survivor of human trafficking, a refugee, a person who has been granted special immigrant status by the United States Citizenship and Immigration Service, a person who has survived reparative or conversion therapy, or a person who has been granted asylum in this country. The petitioner may attach to the statement any supporting documents including relevant court orders, although self attestation shall suffice as acceptable documentation.

(b) If the petitioner files a statement attesting that disclosure of the petitioner's address would put the petitioner or any member of the petitioner's family or household at risk or reveal the confidential address of a shelter for domestic violence victims, that address may be omitted from all documents filed with the court, and the petitioner may designate an alternative address for service.

The revisions to the statute do retain provisions requiring notice to the local prosecutor and the Illinois State Police (see, Sec. 21-102.5), so that persons charged with crimes, or registered sex offenders, at least those convicted in Illinois courts, can not elude the consequences of their crimes by simply changing their names.

I assume that all readers of FWIW will have their own, well-formed opinions about immigration policy, both long-term and in recent years, and I have never immersed myself sufficiently in the minutiae of federalism to offer any expert opinion about which state efforts to evade federal law may be permissible and which may amount to nullification of the kind that I thought, as a history major and armchair historian, we had done away with as a result of the Civil War. However, it is clearly the intent of the drafters of this revision to the name change statute to frustrate the efforts of the Orange Man Bad and his incoming administration's efforts to enforce a particular view of the immigration statutes.

But what will be the consequences in other areas of the abandonment of a stutory publication requirement? Will that encourage fraud? Will our courts be made complicit? Is the temporary frustration of immigration enforcement in some cases worth the other changes unleashed by HB 5164?

Every law has consequences. In theory, that's why we make laws, to have the consequences the legislature desires. Most (and maybe all) laws have unintended consequences as well. Sometimes the consequences may not be intended... but they seem pretty darn obvious.