all morning your honor may it please the court my name is thomas signs and i represent the plaintiff and appellant in this action the statute that issue is one that governs relations between the state itself which is the grand tour of changes of legal name and private parties including the plaintiff john doe that is to say that is this is not a statute that governs relations between private parties as when the state might create or define liability between outside parties and it is not a statute that governs relations between local government and private persons like the statute that was involved in hearne the case cited by the district court here in this context where the statute involves relations between the state itself and private persons you might imagine that a plaintiff would find it particularly of interest to raise a constitutional challenge to discrimination in that statute in federal court rather  accept applications that do not address one way or the other whether the applicant is a united states citizen i guess that injunction would also have to say something like because the court finds that section two point five eight five is unconstitutional for such and such reasons what i'm trying to figure out is how how just ordering the county clerk to take the application would be regarded by an indiana court then in the next step as something that tied the courts hands is something that dictated to the court what's the content of the law we are now applying well county clerk must take applications that don't address citizenship because that requirement is unconstitutional at that point i guess your theory is it's just been deleted from the law and so when the case reaches the state court the state court will we always assume abide by federal law and will not sell for those that the declaration that the statute is unconstitutional that because part of your hypothetical would presumably be followed by the state court judges we were also seeking region injunctive relief relief that would in essence direct the clerk in the state court administrator to cease providing forms that require proof of citizenship to cease giving advice in the case of the county clerk that you must be a us citizen to obtain a legal change of name and an injunction against the governor or attorney general from taking any action to enforce the unconstitutional requirement that you be a us citizen if you change your name legally you know that is not our position so hard that it was contrasting a statute like this one that governs relations between the state itself and private parties from statutes of governor relations between private parties or statutes of governor relations between local government and private parties but essentially it looks like the whole field i mean i'll grant you it's not private law so it's not the law contract not the law of property fine that's a relief but it surely is the area of public law  and maybe you have found other descent maybe the gov doesn't need to be dragged into every one of these things can you tell me why i guess you did not sue the whoever i don't know what the title is in indiana but the director of the bureau of motor female name in there not even sure if that's really a valid id that he's presenting cetera if you question is why we didn't see the director of the bureau i think the answer is that we assume that the director would point the finger at the governor and at the law that's being challenged and argue that his or her hands were tied and they could do nothing in his county clear everybody else you would say the same thing right well no and i think they can say that and of course they do say that but whether they can legitimately say that is another question in this case the county clerk could decide that i'm no longer going to give people advice that you must be a u s citizen because that is illegitimate and unconstitutional could decide to no longer provide forms that require the you present some proof of citizenship similarly the state court administrator could change the form so that she distributes throughout indiana and indicate you do not have to provide proof that your united states citizen similarly the attorney general could of motor vehicles and somehow convince them you know to issue whatever it was the state id card or the driver's license in the name that that person wishes to be know by and the attorney general gets wind of it are there are back up penalties are there not in indiana whether they're misdemeanors or something worse than that for quote unquote misrepresenting your name on a license  i believe that is the case your honor yes i would also say in that circumstance the director of the bureau would potentially face consequences from the governor of the state if the governor disagreed with the conclusion apparently made by the director of the bureau to issue the license despite there being no legal change of name because of a conclusion that that individual could not legally change their name because they are not a united states citizen and that that requirement is illegitimate which is why again we felt their governor was a more appropriate defendant and the director of the bureau the director of the bureau of answers to the governor who if he disagreed with that conclusion would first presumably hold the director of the bureau responsible far beyond going after the individual who may have received requested received a license or id that indicates an incorrect name so it seems to me in a couple of different ways essentially what you're doing is you're bringing a pre enforcement challenge to this law because everybody seems to agree that if john doe had filed an application and it correctly said you know i'm not a u s citizen but i have legitimate status in this country because i've been granted asylum there's no question about being not properly documented and then went to the state court the state court did the predictable thing and turned down at that point he would be able to bring his constitutional claim  before the state court but he would like to but he doesn't want to have violated the law first that's correct your honor he does not want to go out and misrepresent the idea that he is a citizen perhaps by lying on that challenge to his doing one of those things but the point with respect to what the state court would do it's quite clear would have no choice applying the law as it exists today but to deny that change of name if there is no proof of citizenship so proof of asylum status would not suffice state law what if the state court your opponents say oh well you know the state court could just look at this and see read the same cases you're asking the federal courts really conclude that this is unconstitutional provision of the state statute so declare and the problem be solved well problem that is twofold first of all and then requires non citizens to engage constitutional lawyers to make a constitutional argument in the state circuit court which other state with others who are seeking a change of legal name do not have to do that additional burden by itself would be an injury three occasions a potential challenge like this one second that would require john doe in this case to seek to vindicate his constitutional claim in state court rather being then being able to choose a federal district court for him as others who challenge discriminatory laws have for the last fifty sixty years been able to do it so your argument here is as i understand it is really did the general rule for one thousand nine hundred three that there's no exhaustion requirement looking at a state court there are a few areas where that's not true i'm thinking of eminent domain for example but no one has ever said this is such an area there are very limited areas family law also might be one of them where there may be an unstated requirement  in essence exhaust state court remedies in this case exhausting state court remedies would also leave john doe with his only recourse to the federal courts to which he might want to have recourse given the controversy around today the rights of non citizens around the rights of transgender individuals he might well seek to have his constitutional claim heard and decided in independent federal courts but he would be giving up that right because pursuing his constitutional claim the circuit court and the  then the indiana supreme court would mean his only recourse to the independent federal court system would be on the remote likelihood that the us supreme court would choose to hear yes that's right because otherwise there'd be  assuming that the attorney general in enforcing indiana's criminal law was lost what do you know attorney general's role in this in this case attorney joe has now indicated that he would intervene to defend any constitutional challenge to this provision weren't raised in state my name's francis barrow i represent the indiana governor attorney general and the director of the indiana supreme court state court administration division i'm taking the first ten minutes of the pallies time mr joe is seeking an order that in jo state defendant from enforcing the citizenship requirement of indiana's name change statute the problem with that is that the state defendants have no role in the name change pro i've been thinking a lot about this is an unusual case because most cases you know actually in some sense have two parties right but this is not as unusual i think as it may seem at first blush because the state court has similar role for example with adoptions where there's frequently no adversary party you know somebody wants to adopt a child and they just go directly to the state court yet there have been successful challenges  to alleged restrictions on adopting foster children there have been successful challenges to restrictions on adoption of native american children or mixed race adoptions in other words there's been a way to issue a declaration outlining the proper scope of the adoption statutes in a situation that strikes me as very much like this one i think that unlike the adoption scenario which does have the potential for adversarial party sometimes the state department of family and children gets involved because there are foster families but they don't all i mean i'm focusing on that subset of cases where they don't case it's in the process of that petition for adoption like it would be in the process of a petition for a name change that the constitutional claims are litigated not but there have been several cases in this area and i think what they've seen themselves as is what i was saying before in a sense a pre enforcement challenge to a unconstitutional legibly you know i'm not going to prejudge that allegedly unconstitutional state law and because the attorney general in particular i'm going to put the governor to one side i think that's it hard lived but the attorney general in particular is the person who would be bringing in forstmann actions of a criminal nature and perhaps other enforcement actions in this name change area that's been enough to bring in the attorney general in other areas well and in the name change area the potential for criminal enforcement in mr dulles case would be if he perjured himself in his verify petition for example if he said i am a u s citizen and this court has held that a plaint knowing material misstatements of identity in conjunction with official proceedings so if you go present himself as john doe not jane doe then couldn't he be prosecuted indiana driver's license with his male name he needs that name change order before any other change can happen in his immigration documents his driver's license and so any order from a federal court to the state defendant saying you are enjoined from enforcing the name change statute would not be of any benefit to mr doe because they don't do anything to begin with suppose you had the order though that i was thinking about which would simply say to the various people responsible for very different parts of the name change process whether it's the clerk's or whether it's the court administrator the federal court declares so part five to be unconstitutional so you court administrator you county clerk you perhaps somebody else can't do anything inconsistent with that that's what he needs because i don't have any reason to believe supreme court has said in this sort of litigation it's actually preferable to start with a declaratory judgment on the assumption that the state court will respect the federal court's order now as you know twenty two zero one has also provision for backup injunctive relief if necessary i think here the the difficulty if you don't have proper defendants i mean there's still the bedrock issue of jurisdiction but why do  mean i guess you're assuming the proper defendant has to be able to accomplish all of the steps and i'm not sure that's accurate i think if they are simply taking one of the  think there's only one step i think that's relevant here and that is that the declaration that the citizenship requirement is unconstitutional so that the name change judge cannot apply that in a way that they'd have to deny his petition that's related to wouldn't require also though the court administrator let's say one of your clients to delete from all forms delete from all advice anything about citizenship right now they wouldn't do that they would probably think that was irresponsible given the wording of indiana law what if there if there were a final order from a federal court saying  unconstitutional then i mean that i think the state of indiana has shown that it will follow through appropriately in all of the different areas and so he wants his adversary is not a state official his adversary is a statute itself but we've created this situation where the people who are administering the statute can't be reached and certainly i wouldn't want to encourage mr doe to sue the indiana legislature  that would be fraught with problems that i can't even begin to list so i don't think that's a reasonable alternative it's as though indiana passed a statute that said you know and with adoption and with name changes you know we're going to forbid anyone from adopting a name that's muslim in origin and you say well you know that's indiana just doesn't allow muslim names and surely that's not what indiana's trying to do it's not  and we shouldn't say that unreachable it's not unreachable i think the that in this context that it has very narrow context somebody applying for a name change that for an adult doesn't tend to be an adversarial process at all that you don't have other players that would oppose the name change that would be potential defendants predators sometimes do and so sometimes people would like to have names that for some reason usually their noxious names so that for some reason the state doesn't want to permit well and though in the course of objecting to a name change is not the same as making young exception apply because he simply has not shown any connection between the state defendants and the operation of the in ancient status and the attorney general in indiana primary role is to offer the only evidence in this record is that the marion county clerk does not in my training and policy her staff may not refuse to accept a name change petition from anyone based on the clerk's staff views as to whether they the clerk's office is telling people don't bother to put this in if you are not a us citizen just once upon a time not so long ago the clerk's office for marriage licenses might have said you know if you are  same sex don't bother so i think there are two important distinctions i'll take the second one first on the marriage license issue county clerks in indiana like in most states actually are the ones with the authority to issue or deny a marriage license so that no question that a county clerk is a proper defendant in those marriage equality cases this is different this is no different than filing a complaint the clerk's job is to take it file stamp it and send it to the appropriate court to resolve it with the state would all bothered by the fact that the  discouraging function of the dissuading function at the clerk's office providing may in fact be unconstitutional and so and that's why i raised the burden issue there is no evidence in the record that that happened what and as this court explained in the apex digital decision when a defendant raises a factual challenge to jurisdiction to standing it becomes the plaintiff's burden to come for with competent proof that dissuading function i mean now there's some indication the clerk's office is saying oh you know we don't do any of that stuff we just the man over to the court in the court which you know that wouldn't shock me if that's when that's done that but  that's evidence in the record the clerk's office doesn't contest that it has all these forms of different things that are just waiting so there is no evidence in the record that the clerk there allegations in the complaint that under apex digital are no longer entitled to a presumption of standing and the analogy we make in our briefing us now whatever federal officials in charge of the government publishing office becomes the appropriate defendant in any challenge to a federal statute because by publishing the code there they're making folks aware of what the you from taking some action one thing to say awareness another thing to take active measures to dissuade and that's my first question my second is what about the futility point so as to your first question again it comes back to the fact that there's just no there is no evidence in this record that very many contest really that the clerk's office if asked would tell anybody you can't get a name change if you're not a u s citizen and of course he can't go back to his original country and get a name changed because he has  what we what we would contest is and simply all that all of the evidence shows that if they're asked what the law says as a matter of customer service they would tell that parts correct and so he would get the message that it was futile from their point of view because that's what the  losses and again the question is can he trace back utility to anything the clerk is doing i think the futility argument is sort of makes the point if the marion county clerk could change mr doe's name she would she has no legal authority to do it the cases that c r standing all talk about having authority to enforce what she has or saying that part of the law and i guess i'm still wondering why if there weren't declaratory judgment that that part of the largest is in my muslim name example was unconstitutional somebody must be able to make that adjudication otherwise is the law free zone and i think if i may i think the answer is and the point you raise us to the b m v commissioner and also the well casing the six are get a say in wicklow they sued the director of the division of licensing because that's what they want to get so i do i do think mr doe can get into federal court i just don't think it can be against american clerk thank you just saying thank you are when they raised the fact that this isn't an unusual area of law where there is no adversarial relationship in the state court proceeding i would characterize that as a different way of describing this as i had as a statute that governs solely relations between the state itself and private persons it doesn't govern relations between two sets of private persons and all we're asking is that in that context where the statute involves the state's own relations one on one with private persons that is where the argument against traceability and redress ability with respect to the state defendants is at its weakest is there any law in indiana any case law or any other law out grounds for rejecting name changes not that i'm aware of your honor because in most cases these are very quick circumstances where a circuit court judge reviews to determine if there is any fraud and then grants the name change they ordinarily not much of that goes with these proceedings so they don't look at it so for example when frank zappa's daughter wanted to be named moon unit zappa indiana would say that's fine  i mean the barrier of the clerks passing on the current information of the statute doesn't preclude something that didn't occur here at the plain of did not go petition there is no formal barrier there's no formal barrier from the county clerk there is a to court unless you have proof of your side argument to the circuit judge wright could but in that case this point would not have a federal forum to adjudicate his claims of unconstitutional discrimination and that is extremely unusual where someone is affirmative y raising a concern about unconstitutional discrimination as here let me quickly have a few minutes one quickly opined that a injunction could be issued that said for example the governor of indiana is directed not to take any steps or have any executive agencies take any steps to deny the benefits of a legal name change to an individual who was soley denied that legal name change because he is a non citizen who that would people would be bound by that the bureau of motor vehicles would be one year our security attorney the bureau of motor vehicles which issues the idea and refuses to do so in this case without a legal name change would be required to do so all of the agencies of the gov overseas thanks to all counsel will take the case