explaining that birth certificates should reflect sex at birth
How later courts described this case
- explaining that birth certificates should reflect sex at birth
- “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”
Written by the judges who cited it.
The opinion
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 *377 grant a petition for review. State v. McLean, 255 Or 464, 482 , 468 P2d 521 (1970).
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 *378 consideration will probably result in the conclusion that error was committed. On the other hand, if the court views its function as a law-announcing body it will not regard even clear error as a ground for granting a petition for review. Such a court will grant petitions for review only if the issue is one of public or legal importance.
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 bom 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 *379 can take corrective action. No party, neither "K” nor the state, has been injured by the court’s decision.
I would dismiss the petition.