In Re: Hilliard, J., Appeal of: Hilliard, J.

J-A06018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PETITION FOR CHANGE OF : IN THE SUPERIOR COURT OF

NAME OF JESSICA HOPE HILLIARD : PENNSYLVANIA

:

:

APPEAL OF: JESSICA HOPE :

HILLIARD :

:

:

: No. 640 WDA 2022

Appeal from the Order Entered May 3, 2022

In the Court of Common Pleas of Butler County Civil Division at No(s):

2013-40095

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED: APRIL 17, 2023

Appellant Jessica Hope Hilliard a/k/a Jordan Xzavier Hilliard appeals

from the order denying his petition for a name change. Appellant argues that

the name-change felony bar at 54 Pa.C.S. § 702(c)(1) is unconstitutional and

that the trial court erred in denying the petition without conducting a full

hearing. Following our review, we vacate and remand for further proceedings.

Briefly, Appellant filed a petition to change his legal name on February

15, 2022. On May 3, 2022, the trial court conducted a hearing. At the outset,

the trial court confirmed that Appellant had been convicted of a felony and

was still on state parole, which was set to expire on July 3, 2022. The trial

court then concluded that, in light of Appellant’s status as a state parolee, he

was not eligible to change his name under 54 Pa.C.S. § 702(c)(1). Although

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* Retired Senior Judge assigned to the Superior Court.

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Appellant attempted to argue in support of his position, the trial court ended

the hearing and denied Appellant’s petition.

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing

Appellant’s claims.

On appeal, Appellant raises the following issues for review:

1. Does the felony bar violate the Pennsylvania Constitution?

2. Would it be unreasonable to deny [Appellant’s] name change

here where the Commonwealth’s conviction and parole records

already list his desired name?

3. Did the trial court err in refusing to allow a full hearing?

Appellant’s Brief at 8-9.

We address Appellant’s claims together. Appellant argues that the

name-change felony bar at 54 Pa.C.S. § 702(c)(1) violates his due process

rights and right to avoid compelled speech under the Pennsylvania

Constitution. Appellant’s Brief at 19. Specifically, Appellant claims that the

statute violates his right to privacy, his right to avoid disclosure of personal

matters, and his right to reputation. Id. at 20-29. Appellant also argues that

the name-change felony bar is unconstitutional under the irrebuttable

presumption doctrine and fails a traditional means-end review. Id. at 41-57.

Appellant further contends that the trial court erred in finding that he waived

his constitutional claims by failing to raise them before the trial court where

the trial court refused to allow a full hearing on Appellant’s claims. Id. at 59-

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62. Therefore, Appellant requests that we vacate the trial court’s order

denying his name-change petition and remand for a full hearing. Id. at 62.

Appellant’s constitutional challenges raise questions of law for which our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020).

When reviewing such claims, our Supreme Court has explained:

In addressing constitutional challenges to legislative enactments,

we are ever cognizant that “the General Assembly may enact laws

which impinge on constitutional rights to protect the health,

safety, and welfare of society,” but also that “any restriction is

subject to judicial review to protect the constitutional rights of all

citizens.” In re J.B., 107 A.3d 1, 14 ([Pa.] 2014). We emphasize

that “a party challenging a statute must meet the high burden of

demonstrating that the statute clearly, palpably, and plainly

violates the Constitution.” Id. (internal quotations marks and

citation omitted).

Id. at 575; see also Nixon v. Commonwealth, 839 A.2d 277, 286-87 (Pa.

2003) (stating that, when reviewing challenges to the constitutionality of a

Pennsylvania statute, courts must conduct a “means-end review” in which the

court “weigh[s] the rights infringed upon by the law against the interest

sought to be achieved by it, and also scrutinize[s] the relationship between

the law (the means) and that interest (the end)” (citations omitted)).

Our Supreme Court has explained that to establish a violation to the

irrebuttable presumption doctrine, “the challenging party must demonstrate

(1) an interest protected by the due process clause, (2) utilization of a

presumption that is not universally true, and (3) the existence of a reasonable

alternative means to ascertain the presumed fact.” Torsilieri, 232 A.3d at

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579 (citation omitted). Further, when a petitioner raises a colorable due

process claim under the irrebuttable presumption doctrine, the petitioner must

be given an opportunity to present evidence in an effort to rebut the legislative

finding underlying the statutory presumption. See id. at 587, 596; see also

Commonwealth v. Mickley, 240 A.3d 957, 963 (Pa. Super. 2020).

In matters where there is no factual record on which to review a

petitioner’s constitutional claims, both this Court and our Supreme Court have

concluded that remand may be necessary. See Torsilieri, 232 A.3d at 596

(concluding that remand was necessary for the trial court to conduct a hearing

and consider evidence in support of the petitioner’s irrebuttable presumption

claim); Mickley, 240 A.3d at 963 (remanding pursuant to Torsilieri); see

also Commonwealth v. Asher, 244 A.3d 27, 33 (Pa. Super. 2020) (same);

In re C.M.T., 861 A.2d 348, 351, 357 (Pa. Super. 2004) (rejecting the

juvenile court’s finding that a school district’s compliance with an

individualized education plan (IEP) “establishe[d] an irrebuttable presumption

that [the appellant’s] alleged disability-related absences [were] unjustified[,]”

and remanding the matter for further development of the record where the

juvenile court refused “to allow [the] appellant to present evidence to justify

her absence from school”).

Name-change petitions are governed by 54 Pa.C.S. § 702, which

provides as follows:

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§ 702. Change by order of court

(a) General rule.—The court of common pleas of any county may

by order change the name of any person resident in the county.

(b) Procedure.—Prior to entry of an order of approval of change

of name, all of the following shall apply:

(1) The court must forward to the Pennsylvania State Police a

duplicate copy of the application for change of name and a set

of the person’s fingerprints. The person applying for the

change of name is responsible for costs under this paragraph.

(2) The Pennsylvania State Police shall use the fingerprints to

determine if the person is subject to 18 Pa.C.S. Ch. 91 (relating

to criminal history record information).

(3) The Pennsylvania State Police shall:

(i) if the person is subject to 18 Pa.C.S. Ch. 91, note the

name change on the person’s criminal history record

information; or

(ii) if the person is not subject to 18 Pa.C.S. Ch. 91, destroy

the fingerprints.

(4) Within 60 days of receipt of the material under paragraph

(1), the Pennsylvania State Police shall certify to the court what

action has been taken under paragraph (3).

(5) The procedure in this subsection shall not apply to

proceedings involving:

(i) An election to resume a prior surname pursuant to

section 704 (relating to divorced person may resume prior

name).

(ii) Name changes involving minor children in adoption

proceedings.

(iii) A name change involving a minor child whose name is

being changed pursuant to section 703 (relating to effect on

children) or because of the change of name of the child’s

parent.

(c) Convicted felons.—

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(1) The court may order a change of name for a person

convicted of a felony, subject to provisions of paragraph (2),

if:

(i) at least two calendar years have elapsed from the date

of completion of a person’s sentence and that person is not

subject to the probation or parole jurisdiction of any court,

county probation agency or the Pennsylvania Board of

Probation and Parole; or

(ii) the person has been pardoned.

54 Pa.C.S. § 702(a)-(c)(1).

Here, as noted previously, the trial court conducted a truncated hearing

on Appellant’s petition for a name change. At the hearing, parole officer Scott

Dobson confirmed that Appellant was still on state parole for a previous felony

conviction. N.T. Hr’g, 5/3/22, at 3-4. After Appellant informed the trial court

that he had less than sixty days left on parole, the following exchange

occurred:

THE COURT: [The s]tatute requires -- the court may order a

change of name for a person convicted of a felony subject to

provisions of paragraph [two] if at least two calendar years have

elapsed from the date of completion of the person’s sentence, and

that person is not subject to the probation and parole jurisdiction

of any court, county probation agency, or the Pennsylvania Board

of Probation and Parole. As such, you do not qualify at this point

in time for a change of name.

MR. DOBSON: From my understanding, it actually states that the

court may order that still.

THE COURT: I’m not willing to do that.

[Appellant]: Even though I’m still on – I’m on state parole under

Jordan Hilliard.

THE COURT: I understand.

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[APPELLANT]: I was incarcerated under Jordan Hilliard, and

everything about me, Your Honor, is Jordan Hilliard. My medical,

my parole, my incarceration date -- I mean my name, my

employment --

THE COURT: I’m not going to argue with you, sir. It says this:

paragraph C; convicted felon, sub-paragraph 1. The court may

order a change of name of a person convicted of a felony subject

to the provisions of paragraph 2 if at least two calendar years have

elapsed from the date of completion of a person’s sentence, and

that person is not subject to the probation or parole jurisdiction of

any court, county probation agency, or the Pennsylvania Board of

Probation and Parole. At this point in time, you do not comply.

Once you’ve completed the requisite time period, refile your

petition. You did it back in [2013], and you’re refiling it now. You

need to do it again. Thank you very much.

N.T. Hr’g, 5/3/22, at 4-5 (some formatting altered).

In its Rule 1925(a) opinion, the trial court addressed Appellant’s

constitutional claims as follows:

On appeal, [Appellant] raises the constitutionality and validity of

the “felony bar” set forth in the name change statute, 54 Pa.C.S.

§ 702(c), an issue that was never raised before this court.

[Appellant] had the opportunity to challenge the constitutionality

and validity of the statute, as these issues were discussed during

the May 3, 2022, hearing on the petition for change of name.

Additionally, [Appellant] was aware of the “felony bar” statute

prior to filing his present petition for change of name, as the

Honorable Marilyn J. Horan denied a similar name change request

by [Appellant] on July 13, 2013, as he was at that time on parole

for a felony conviction emanating from the State of Illinois.

Despite being given the opportunity to raise said issues,

[Appellant] failed to challenge the constitutionality or validity of

54 Pa.C.S. § 702(c) prior to or during the May 3, 2022, hearing

on his petition for change of name. As such, the court respectfully

submits that allegations of error numbered 1 through 5, each of

which concern the “felony bar,” are waived.

Trial Ct. Op., 7/25/22, at 2 (some formatting altered).

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Our review of the record confirms that Appellant did not raise any

constitutional claims at the hearing on his name-change petition. However,

although Appellant attempted to argue in support of his position during the

hearing, the trial court stated that it was “not going to argue,” denied

Appellant’s petition, and ended the hearing. See N.T. Hr’g at 5. Under these

circumstances, we agree with Appellant that he did not have an opportunity

to present argument in support of his constitutional claims. As a result, there

is no factual record on which we can evaluate Appellant’s arguments on

appeal.1 Therefore, on this record, we conclude that remand is necessary to

allow the parties to present additional argument and evidence as it relates to

Appellant’s constitutional claims. See Torsilieri, 232 A.3d at 596. For these

reasons, we vacate the trial court’s order and remand for further proceedings.

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1 We emphasize that this case presents an important question concerning the

constitutionality of Pennsylvania’s name-change statute, which has faced

scrutiny in recent years. In 2021, Judge Christine Ward from the Allegheny

County Court of Common Pleas ruled that Pennsylvania’s felony name bar was

unconstitutional and granted name-change petitions filed by two individuals

with prior felony convictions. The Pennsylvania Office of the Attorney General

declined to file an appeal in either case. See In Re: Petition of Scott Porter,

Jr., Civil Docket No. GD-21-11804 (C.C.P. Allegheny Cty. 2021); In Re:

Petition of Robert Lee Noaker, Jr., Civil Docket No. GD-21-11805 (C.C.P.

Allegheny Cty. 2021); see also Porter v. Commonwealth, 2020 WL

4342721 (dismissing the petitioners’ request for injunctive relief on procedural

grounds, but declining to address the parties’ constitutional claims, and noting

that the Commonwealth Court would “express no opinion on the potential

merits of a future suit against proper parties”). In Philadelphia, Common Pleas

Court Judge Sierra Thomas Street granted a name-change petition filed by an

individual with a prior felony conviction. See In Re: Alvarado, Civil Docket

No. 210901990 (C.C.P. Phila. 2021). However, Judge Thomas Street did not

make any determination regarding the constitutionality of the statute.

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Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2023

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