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AGO 1959 No. 45 - June 08, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS - STATE - DEPARTMENT OF HEALTH - ISSUANCE OF NEW CERTIFICATE OF BIRTH PURSUANT TO A DECREE OF ADOPTION AS A MINISTERIAL FUNCTION.

The Department of Health, through the State Registrar of Vital Statistics, is required to issue a birth certificate pursuant to an adoption decree of the superior court which directs the inclusion of other than the actual birthplace and/or date of birth on a birth certificate to be issued following adoption.

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                                                                    June 8, 1959

Honorable Bernard Bucove
Director
Department of Health
General Administration Building
Olympia, Washington                                                                                                  Cite as:  AGO 59-60 No. 45

Dear Sir:

            This is in answer to your letter requesting the opinion of this office on a question we paraphrase as follows:

            Is the Department of Health, through the State Registrar of Vital Statistics, legally required to issue a birth certificate pursuant to an adoption decree of a superior court which directs the inclusion of other than the actual birthplace and/or date of birth on a birth certificate to be issued following adoption?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Your question arises out of the fact that occasionally the department is presented with adoption decrees entered by the superior court, which direct a change in the date of birth of the child or a change in the place of birth.  There is apparently no question that the birth certificates as originally filed are correct, but in several instances the actual date and place of birth of the children involved were changed in the adoption decree.

             [[Orig. Op. Page 2]]

            The pertinent portion of the adoption laws of the state of Washington is found in RCW 26.32.120, as follows:

            "Upon the conclusion of such hearing, if had, or upon filing the report of investigation, if any, or as soon as the procedure hereunder may permit, the court shall enter its decree either granting or denying the petition for adoption and change of name, if any, all as in its discretion it shall deem proper.  If the decree is for adoption, it shall provide:

            "(1)For the issuance of a certificate of birth of any child born in the state of Washington, by the state registrar of vital statistics, in such form andcontaining such information as the court may deem proper . . ." (Emphasis supplied.)

            The duties of the state and local registrars with regard to the issuance of birth certificates after a decree of adoption has been entered are set forth in RCW 70.58.210, as follows:

            "Whenever a decree of adoption has been entered declaring a child, born in the state of Washington, adopted in any court of competent jurisdiction in the state of Washington or any other state, a certified copy of the decree of adoption shall be recorded with the proper department of registration of births in the state of Washington and a certificate of birth shall issue upon request, bearing the new name of the child as shown in the decree of adoption, the names of the foster parents of the said child, age, sex, date of birth, but no reference in any birth certificate shall have reference to the adoption of the said child.  However, original registration of births shall remain a part of the record of the said board of health: . . ."

            From an analysis of the foregoing statutes it appears that the State Registrar of Vital Statistics is required to issue a certificate of birth containing the information contained in the decree of adoption.  In order to determine whether or not the action of the registrar is discretionary or ministerial,  [[Orig. Op. Page 3]] resort must be had to pertinent authority.  The rule is stated in 43 Am.Jur., Public Officers, 74, § 258, as follows:

            "The character of a duty as ministerial or discretionary must be determined by the nature of the act to be performed, and not by the office of the performer.  A similar rule is applied in determining whether a function is judicial, quasi-judicial, or ministerial. . . .  Official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature.  Discretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.  Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way if shall be performed. . . ."

            See, also, the discussion in 67 C.J.S., Officers, § 112, at p. 398, andBritish Columbia Breweries v. King County, 17 Wn. (2d) 437, 448, 135 P. (2d) 870.

            We think it is clear from the foregoing statements of the rule to be applied that the State Registrar of Vital Statistics is performing a ministerial function rather than a discretionary one in issuing a certificate of birth pursuant to a decree of adoption, whereas the superior court is vested with broad discretion under the act, supra.  Accordingly, the State Registrar and all others charged with the responsibility for the registration of births have no other alternative than to issue the certificate containing the information, whether changed or not, set forth in the decree of adoption.

            This opinion is consistent with and reaffirms the previous opinion of this office written on December 27, 1946, to the Director of Health [[1947-48 OAG 2b]], in which we ruled that the Department of Health is required to issue a certificate  [[Orig. Op. Page 4]] of birth pursuant to a decree of adoption even though some of the information contained in the revised certificate is incorrect.  That opinion pointed out that although such a decree would be erroneous, it would not be void and could not be disregarded.  Accordingly, only an interested party could challenge the placing of inaccurate information in the birth certificate, and the Department of Health is not such an interested party.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorey General

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