The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

SECRETARY OF STATE:

DRIVER LICENSES:

Requirements for changing a name on a driver license

The Michigan Secretary of State may, but is not required to, accept an affidavit alone as sufficient legal proof to effectuate a common law name change on a person's driver license.

Opinion No. 7142

October 17, 2003

Honorable Chris Kolb
State Representative
The Capitol
Lansing, MI

You have asked if the Michigan Secretary of State is required to accept an affidavit alone as sufficient legal proof to effectuate a common law name change on a person's driver license.

The Michigan Vehicle Code (Code), 1949 PA 300, MCL 257.1 et seq, provides for the examination and licensing of operators of motor vehicles. The Secretary of State is the exclusive state agent for the administration of the Code's driver license provisions. MCL 257.202. The Secretary of State is a constitutional office created pursuant to Const 1963, art 5, ß 21, and serves as the head of the Department.

Applications for driver licenses are governed by section 209 of the Code, MCL 257.209:

The department shall examine and determine the genuineness, regularity, and legality of every application for registration of a vehicle, for a certificate of title therefore, and for an operator's or chauffeur's license and of any other application lawfully made to the department, and may in all cases make investigation as may be deemed necessary or require additional information, and shall reject any such application if not satisfied of the genuineness, regularity, or legality thereof or the truth of any statement contained therein, or for any other reason, when authorized by law. [Emphasis added.]

The Department advises that under its current practice, when an applicant requests issuance of a driver license in a new name at a branch office, the applicant must submit written verification of current usage of the new name. The applicant must present sufficient documentation to substantiate that the applicant has been publicly using the common law name for at least six months before application. If the branch employee is not satisfied with the information presented, management concurrence is sought and the applicant is informed that the submitted proof is not sufficient. The applicant is instructed to either bring in additional information or seek a court order changing his or her name.

The materials forwarded with your request suggest that a refusal by the Department to accept an affidavit1 alone to establish a common law name change may conflict with OAG, 1973-1974, No 4834, p 185 (October 2, 1974).

OAG No 4834 involved nurses, who had assumed their husbands' names and wanted to use their maiden names on their nurse's licenses without resorting to judicial proceedings. The Nursing Board had a rule that: "'A copy of the legal document authorizing the change of name shall be received in the board office before the name will be changed on the records.'" Id., at p 186 (emphasis added). As noted in the opinion, the statutory method for changing a name at that time involved petitioning the probate court for an order. Id., at p 186, quoting OAG, 1935-1936, No 93, p 254, 255 (July 30, 1935). The opinion observed, however, that at the common law, and in the absence of statutory restrictions, one could change his or her name without resort to legal proceedings, provided that the change was not done with a fraudulent intent.2  The opinion concluded that an affidavit, and the common law right to a name change, was sufficient to meet the rule's requirement for legal documentation. Id., at 186-187.

OAG No 4834 does not, however, conflict with the Secretary of State's discretion to require sufficient evidence of a name change before issuing a driver license in the new name. There is no indication in OAG No 4834 that the Nursing Board, which had asked for the opinion, was prohibited from requiring more than an affidavit if it determined additional documentation was necessary. Rather, the opinion endorsed the board's acceptance of something other than a court order as adequate "legal documentation."

As the opinion acknowledges, the legal effect to be given a common law name change is subject to statutory restrictions. Id., at 186. The Legislature in the Michigan Vehicle Code has empowered the Department to "in all cases make investigation" and "require additional information" to satisfy itself as to the "genuineness, regularity, or legality" of any statement made in any application filed with the Secretary of State, including an application for a new driver license to reflect a name change. MCL 257.209. Clear and unambiguous statutory language must be enforced as written according to its plain meaning. Dean v Depít of Corrections, 453 Mich 448, 454; 556 NW2d 458 (1996). The Code, thus, grants broad authority to the Secretary of State to investigate and require additional information if not satisfied regarding every driver license application made to the Department. The Secretary of State, therefore, may, but is not required to, accept an affidavit alone as adequate proof of a name change.

The purpose of the Department's procedures before issuing a driver license or identification card is to ensure that the applicant has, in fact, assumed a new name, and to safeguard the state personal identification system as a primary form of official documentation and identification. To address these concerns, the Legislature has enacted a comprehensive system of criminal penalties to prevent the wrongful use of driver licenses including: MCL 28.293 (a person who falsely represents information upon application for an official state personal identification card is guilty of a felony); MCL 28.295 (illegal to intentionally reproduce, alter, counterfeit, forge, or duplicate an identification card); MCL 28.295a (a person who makes a false representation or false certification to obtain personal information is guilty of a felony); MCL 257.324 (illegal to display, possess, fail or refuse to surrender, use a false or fictitious name, or give false or fictitious address for an operator's or chauffeur's license); MCL 750.285 (a person shall not obtain or attempt to obtain personal identity information of another person with the intent to unlawfully use that information); and MCL 257.310 (making it a crime under certain circumstances to possess a copy of a driver license).

It is my opinion, therefore, that the Michigan Secretary of State may, but is not required to, accept an affidavit alone as sufficient legal proof to effectuate a common law name change on a person's driver license.


MIKE COX
Attorney General

1The word "affidavit" is used throughout this opinion to mean a written statement acknowledged under oath, most commonly before a notary public.

2Accord, Rappleye v Rappleye, 183 Mich App 396; 454 NW2d 231 (1990).