R. I. B. v. Brown County Circuit Court

2023 WI APP 9

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP323-FT

Complete Title of Case:

IN THE MATTER OF THE NAME CHANGE OF R. I. B.:

R. I. B.,

PETITIONER-APPELLANT,

V.

BROWN COUNTY CIRCUIT COURT,

RESPONDENT-RESPONDENT.

Opinion Filed: January 18, 2023
Submitted on Briefs: August 2, 2022
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of Robert Theine Pledl of Davis & Pledl, SC, Milwaukee.

Respondent
ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on
the brief of Joshua L. Kaul, attorney general, and Beauregard W.
Patterson, assistant attorney general.
2023 WI App 9

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 18, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP323-FT Cir. Ct. No. 2021CV1262

STATE OF WISCONSIN IN COURT OF APPEALS

IN THE MATTER OF THE NAME CHANGE OF R. I. B.:

R. I. B.,

PETITIONER-APPELLANT,

V.

BROWN COUNTY CIRCUIT COURT,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. This appeal addresses whether a transgender individual met
the statutory requirements for a confidential name change under WIS. STAT.
No. 2022AP323-FT

§ 786.37(4) (2019-20).1 In answering that question, we must determine the meaning
of § 786.37(4)’s evidentiary standard for obtaining a confidential name change—
specifically, the petitioner must demonstrate “by a preponderance of the evidence[]
that publication of his or her petition could endanger him or her.” (Emphasis
added.)

¶2 Robert2 appeals a circuit court order denying his petition for a
confidential name change pursuant to WIS. STAT. § 786.37(4). Robert argues that
§ 786.37(4)’s standard required him to demonstrate only that it is possible that
physical, mental, or emotional harm could occur to him if his name change petition
is published, and that the court erred when it concluded that Robert failed to
demonstrate by a preponderance of the evidence that publication of his name change
petition “could endanger” him. Conversely, the State contends that § 786.37(4)
required Robert to demonstrate that it is more likely than not that physical harm
could occur to him if his name change petition is published.

¶3 We conclude that WIS. STAT. § 786.37(4)’s standard requires proof
that a petitioner more likely than not could be physically endangered if the name
change petition is published. “Could,” as used in this context, simply denotes the
possibility of a future event. We further conclude that the circuit court did not

1
This is an expedited appeal under WIS. STAT. RULE 809.17 (2019-20). All references to
the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

WISCONSIN STAT. §§ 786.36 and 786.37 were amended by 2021 Wis. Act 182 to include
provisions relating to name changes of minors under fourteen years of age. See §§ 786.36(1m)(c);
786.37(2). These amendments do not affect this case.
2
For ease of reading, we use a pseudonym in this confidential matter when referring to
the appellant, R.I.B.

Furthermore, we refer to Robert using a “male” name and he/him pronouns “out of respect
for [Robert’s] individual dignity.” See State v. C.G., 2022 WI 60, ¶6, 403 Wis. 2d 229, 976 N.W.2d
318 (plurality opinion as to ¶¶6 and 36-46).

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erroneously exercise its discretion by denying Robert’s petition for a confidential
name change, which it did in a manner consistent with applying the foregoing
standard. We therefore affirm the court’s order.

BACKGROUND

¶4 Born a biological female, Robert has since identified as a transgender
male. At the age of sixteen, Robert filed a pro se petition in the circuit court for a
confidential name change. Robert requested that his first name be legally changed
from the “female” name, given to him at birth, to the “male” name that Robert now
uses publicly. The court denied Robert’s pro se petition for a confidential name
change. Robert appealed that decision to this court, but we dismissed the appeal
due to Robert’s failure to submit a brief.

¶5 Roughly one year after the circuit court dismissed Robert’s first
petition, Robert retained counsel and filed a second petition for a confidential name
change.3 Attached to the second petition was an addendum, from which the
following facts concerning Robert’s background are taken.

¶6 Robert began questioning his gender identity at a young age, and he
“became more aware of [his] true gender identity” when he was roughly twelve
years old. While enrolled in elementary school, Robert began “transition[ing]
socially” by wearing men’s clothing and going by the name “Robert.” During that
same time, Robert began experiencing bullying. Students “verbally abused” Robert
for wearing men’s clothes and for using a “male” name, and they reportedly called
Robert “a fat ugly lesbian.” According to Robert, these same students also “kicked

3
The Honorable Tammy Jo Hock presided over both of Robert’s petitions for a
confidential name change.

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and punched” him. Similarly, a teacher at Robert’s elementary school verbally
abused him by repeatedly stating that Robert “had bad parents” because they
allowed him to wear male clothing and go by a male name. The teacher also referred
to Robert as “an ugly little girl” and told Robert that he “would have no friends.”
Robert further stated that when he cried at school because of the teacher’s conduct,
the teacher threatened to audiovisually record Robert so that others could see that
he was “acting like a girl and not like a boy.” On one occasion, Robert was so afraid
of the teacher that he hid in a bathroom until the school’s “crisis team” arrived.

¶7 Unfortunately, Robert faced more bullying once he enrolled in middle
school, again for wearing men’s clothing and using a “male” name. According to
Robert, students called him a “lesbian,” a “faggot,” and an “ugly bitch.” Students
also threatened to “punch and stab” Robert, and at one point he was pushed to the
ground “and a group of students beat [him] up.” On another occasion, Robert found
a note in his locker “telling [him] to kill” himself. Robert “became so anxious” that
he was hospitalized in a psychiatric unit.

¶8 Robert determined that he could not stay at that middle school, and
halfway through his eighth grade year, he transferred to a different school. After
transferring, “[t]hings were somewhat better” at Robert’s new school, although he
was still bullied by one student, and one teacher refused to use Robert’s “he/him
pronouns.”

¶9 Outside of school, Robert’s bullying continued. Students in Robert’s
neighborhood called him “slurs, beat [him] up, and threatened to shoot [him] with a
BB gun.” According to Robert, some members of his family “criticized” him and
his mother, and they “cut off contact” with them because of Robert’s gender
identity.

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¶10 In 2019, when Robert was fourteen or fifteen years old, he “began
hormone therapy … and it significantly changed [his] appearance.” Robert also
“recently had sex change surgery to remove breast tissue and masculinize [his]
chest.” Robert’s “physical appearance is now that of a 17 year old boy.”

¶11 Robert’s petition also cited national news stories “about transgender
people being assaulted, physically harmed[,] and killed because of their gender
identity.” Based on Robert’s previous experiences with being bullied, he is
“worr[ied]” that the physical violence cited in those stories could happen to him.
Based on the above facts, Robert’s petition stated that if Robert’s name change
petition is published, he believes that “students at [his] school and other people will
bully [him] and physically attack [him].”

¶12 Robert submitted four attachments in support of his petition for a
confidential name change. One attachment was a letter from the doctor who
performed Robert’s sex change surgery, verifying that the surgery occurred.
Another attachment was a letter from Robert’s therapist, “describing [the] bullying
and harassment that [Robert] has reported to her.” The third attachment was a
government report from the United States Department of Health and Human
Services/Centers for Disease Control and Prevention, titled “Transgender Identity
and Experiences of Violence Victimization, Substance Use, Suicide Risk, and
Sexual Risk Behaviors Among High School Students—19 States and Large Urban
School Districts.” The last attachment was a letter from Robert’s mother,
confirming that Robert has never been charged with a crime or adjudicated
delinquent, nor does he have any personal debt. Robert’s counsel also filed a brief
in support of Robert’s confidential name change petition, which cited additional
materials discussing violence against transgender individuals.

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No. 2022AP323-FT

¶13 The circuit court did not hold a hearing on Robert’s petition for a
confidential name change and denied the petition in a written order. The court held
that “[t]he test is not whether a person is uncomfortable with public disclosure of a
name change but rather if the publication required under Wisconsin Statutes would
endanger the individual.” The court found that Robert

describes [in his petition] being fearful that if this petition
for a name change is published in the newspaper, [he] will
be bullied or physically attacked. Yet, [Robert] is already
using the name [“Robert”] with family members, at school
and in personal dealings. Furthermore, … 17 year old
[Robert] describes having undergone “sex change surgery to
remove breast tissue and masculinize [his] chest” and “[his]
physical appearance is now that of a 17 year old boy.”
Therefore, anyone who has contact with [Robert] already
knows that [he] is in gender transition and uses a male name.

The court therefore determined that Wisconsin’s standard, nonconfidential name
change procedure “does not provide a danger to [Robert] or subject [Robert] to
harassment and/or intimidation.” Stated differently, the court concluded that Robert
had failed to show “[a] rational basis to believe [that Robert] is endangered due to
publication to notify possible creditors.”

¶14 Robert now appeals, asking this court to reverse the circuit court’s
order denying his confidential name change petition and to remand this matter for
the court to consider the merits of the actual name change petition.

DISCUSSION

I. Standard of review

¶15 The parties first disagree over the proper standard of review to apply
to a circuit court’s order denying a confidential name change petition. Robert
contends that because the court never held a hearing on his name change petition, a

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No. 2022AP323-FT

de novo standard of review should apply to our review because there are no factual
issues on appeal.4 We agree with the State, however, that our review of a circuit
court’s decision to deny a confidential name change petition is limited to the
erroneous exercise of discretion standard. See Williams v. Racine Cnty. Cir. Ct.,
197 Wis. 2d 841, 844-45, 541 N.W.2d 514 (Ct. App. 1995) (holding that “[i]t is
within the discretion of the [circuit] court to decide whether an offered reason is
sufficient cause to deny [a name change] petition” under WIS. STAT. § 786.36); see
also State v. C.G., 2022 WI 60, ¶85, 403 Wis. 2d 229, 976 N.W.2d 318.

¶16 “We will sustain a discretionary act if we find the [circuit] court
examined the relevant facts, applied a proper standard of law, and using a
demonstrative rational process, reached a conclusion that a reasonable judge could
reach.” Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶19, 251 Wis. 2d 68, 640
N.W.2d 788. “It is recognized that a [circuit] court in [a proper] exercise of its
discretion may reasonably reach a conclusion which another judge or another court
may not reach.” Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

¶17 We independently consider, however, “any questions of law which
may arise during our review of an exercise of discretion.” LeMere v. LeMere, 2003

4
Robert does not argue on appeal that the circuit court erred by failing to hold a hearing
on Robert’s petition for a confidential name change. We therefore need not address whether the
court erred in that regard. We do note, however, that because the court did not hold a hearing, the
factual record is not well developed, thus making appellate review more difficult.

Robert cites Convenience Store Leasing & Management v. Annapurna Marketing, 2019
WI App 40, ¶13, 388 Wis. 2d 353, 933 N.W.2d 110, to support his assertion that this court should
review the circuit court’s decision de novo. In Annapurna, we applied a de novo standard of
review because there were not any “relevant and disputed issues of fact.” Id. But Annapurna
involved a different issue than the issue in this case. In Annapurna, the question on appeal was
whether a contract’s purpose had been frustrated—a mixed question of law and fact. Id. Because
there were not any questions of fact, we applied a de novo standard of review. Here, as explained,
our standard of review involves a discretionary decision. See Williams v. Racine Cnty. Cir. Ct.,
197 Wis. 2d 841, 844-45, 541 N.W.2d 514 (Ct. App. 1995).

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No. 2022AP323-FT

WI 67, ¶14, 262 Wis. 2d 426, 663 N.W.2d 789 (citation omitted). In this appeal,
the only question of law surrounds the meaning of WIS. STAT. § 786.37(4)’s
evidentiary standard. “Statutory construction … is a question of law that we decide
independently, owing no deference to the decisions of” the circuit court. Burbank
Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶13, 294 Wis. 2d 274, 717
N.W.2d 781. We therefore review de novo the meaning of § 786.37(4).

II. Wisconsin’s name change statutes

¶18 Name changes in Wisconsin are governed by WIS. STAT. §§ 786.36
and 786.37. Under § 786.36(1), “any resident of this state, whether a minor or adult,
upon petition to the circuit court of the county where he or she resides and upon
filing a copy of the notice required under [§] 786.37(1),” may have his or her name
changed “if no sufficient cause is shown to the contrary.” “Before petitioning the
court to change or establish a name, the petitioner shall publish a class 3 notice under
[WIS. STAT.] ch. 985 stating the nature of the petition and when and where the
petition will be heard.” Sec. 786.37(1). A class 3 notice requires that legal notice
be published in a newspaper for three consecutive weeks, “the last of which shall be
at least one week before” the name change petition is heard. WIS. STAT.
§§ 985.01(1m)(a), (2); 985.07(3)(a).

¶19 A petitioner may request a confidential name change, however, in
which “the clerk of court shall ensure that the name change petition is confidential
upon the filing of the petition and [WIS. STAT. § 786.37](1) does not apply to the
petitioner.” Sec. 786.37(4). If a court determines that publication of the petition is
not warranted, and it does not find “sufficient cause” to deny the name change
petition, “all records related to the petitioner’s name change shall be confidential
and are exempt from disclosure under [WIS. STAT. §] 19.35(1),” Wisconsin’s public

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records law, and “[t]he court shall transmit to the register of deeds a form that states
the petitioner’s former name and states that the new name is confidential and may
not be disclosed.” See WIS. STAT. § 786.36(1), (2m)(a). Thereafter, the name
change records “may not be disclosed by the state registrar of vital records, the
register of deeds, or a local registrar.” Sec. 786.36(2m)(b).

¶20 Even if a petitioner files a petition for a confidential name change, a
circuit court still “may require the petitioner to comply with [WIS. STAT.
§ 786.37](1) if the petitioner is unable to show, by a preponderance of the evidence,
that publication of his or her petition could endanger him or her and that he or she
is not seeking a name change in order to avoid a debt or conceal a criminal record.”
Sec. 786.37(4). Furthermore, even if a court grants a confidential name change, the
court still “may order disclosure of confidential information upon good cause shown
and upon determining that the safety of the petitioner is not jeopardized by
disclosure.” WIS. STAT. § 786.36(2m)(b).

III. The meaning of “could endanger” in WIS. STAT. § 786.37(4)

¶21 As noted, the dispute in this case largely centers on WIS. STAT.
§ 786.37(4)’s evidentiary standard requiring a petitioner to show “by a
preponderance of the evidence[] that publication of his or her petition could
endanger him or her.” The phrase “could endanger” is not defined in the statute,
nor has there been any Wisconsin case construing the meaning of “could endanger”
in the context of § 786.37(4).

¶22 On appeal, Robert first contends that the circuit court incorrectly
required him to demonstrate that he could face physical harm—as opposed to mental
or emotional harm—if his name change petition were published. Robert also claims
that the court incorrectly analyzed whether publication of the name change petition

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“would endanger” him—instead, he argues that he needed to show only that the
danger he faced was a possibility, as evidenced by the statutory language “could
endanger.” Conversely, the State argues that the court correctly interpreted the
statute by requiring Robert to demonstrate that physical harm was more than a mere
possibility.

¶23 “[T]he purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State ex
rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110. When determining the meaning of a statute, we

look first at the plain language of the statute, taking into
consideration the context in which the provision under
consideration is used. “Statutory language is given its
common, ordinary, and accepted meaning.” The scope,
history and purpose of the statute are also “relevant to a
plain-meaning interpretation of an unambiguous statute as
long as [they] are ascertainable from the text and structure of
the statute itself.” When a word of common usage is not
defined in a statute, we may turn to a dictionary to ascertain
its meaning. If the language of a statute is ambiguous, we
may consider extrinsic sources, such as legislative history,
to aid in our analysis. However, we may consult extrinsic
sources “to confirm or verify a plain-meaning
interpretation.”

Burbank Grease, 294 Wis. 2d 274, ¶14 (alteration in original; citations omitted);
see also WIS. STAT. § 990.01(1) (“All words and phrases shall be construed
according to common and approved usage; but technical words and phrases and
others that have a peculiar meaning in the law shall be construed according to such
meaning.”). “[S]tatutes are to be interpreted ‘in relation to the language of
surrounding or closely-related statutes.’” State v. Reyes Fuerte, 2017 WI 104, ¶27,
378 Wis. 2d 504, 904 N.W.2d 773 (citation omitted).

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A. A “preponderance of the evidence” that something “could” happen
means that it is more likely than not possible, not just at all possible.

¶24 The State contends that because WIS. STAT. § 786.37(4) requires a
petitioner to prove by a preponderance of the evidence that they could be
endangered, “[d]emonstrating the mere possibility of endangerment” is insufficient.
Conversely, Robert asserts that it is significant that the legislature used the word
“could” instead of “would.” According to Robert, the term “could” is used “to
denote possibility.” Robert contends, therefore, all that is necessary is that the
petitioner demonstrate that endangerment is possible.

¶25 “Could” is a verb and the past tense of “can” and is defined as,
inter alia, “may possibly.” Could & can, WEBSTER’S THIRD NEW INT’L
DICTIONARY (unabr. 1993). Conversely, “would” is a verb and the past tense of
“will” and is used, inter alia, “to express probability” or “inevitability.” Would &
will, WEBSTER’S THIRD NEW INT’L DICTIONARY (unabr. 1993). “[P]reponderance
of the evidence” means “more likely than not.” See State v. Rodriguez, 2007 WI
App 252, ¶18, 306 Wis. 2d 129, 743 N.W.2d 460.

¶26 If correct, Robert’s interpretation of WIS. STAT. § 786.37(4) would
mean that a petitioner must simply demonstrate that there is any possibility of
endangerment. In a similar “semantic puzzle,” a justice on our supreme court noted
that “[t]here is an obvious tension in requiring proof that an event is ‘more likely
than not to happen’ when the fact to be proved is that the event is ‘sure to happen.’”
See State v. Jackson, 2016 WI 56, ¶147 & n.50, 369 Wis. 2d 673, 882 N.W.2d 422
(Abrahamson, J., dissenting) (discussing the inevitable discovery doctrine). While
we agree that we cannot ignore the legislature’s use of the word “could,” Robert’s
interpretation would essentially erase the requirement that a petitioner prove
endangerment by a preponderance of the evidence because anything is “possible.”

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See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶14 n.9, 316 Wis. 2d 47,
762 N.W.2d 652 (“[C]ourts must presume that a legislature says in a statute what it
means and means in a statute what it says there.” (citation omitted)).

¶27 In most statutory situations governed by a preponderance of the
evidence standard, the burden is on a party to demonstrate that something “was” or
“is” true. See, e.g., WIS. STAT. § 132.033(2)(a) (burden is on individual to prove by
a preponderance of the evidence that a defendant “engaged” in a violation (emphasis
added)); WIS. STAT. § 938.34(16) (court may not impose an original dispositional
order “unless the court finds by a preponderance of the evidence that the juvenile
has violated a condition of his or her dispositional order” (emphasis added)); WIS.
STAT. § 895.047(2)(a)2. (seller or distributer of product not liable for strict liability
claim unless, inter alia, “claimant proves by a preponderance of the evidence that
neither the manufacturer nor its insurance is subject to service of process within”
Wisconsin (emphasis added)).

¶28 Under WIS. STAT. § 786.37(4), however, we conclude that the burden
is on a petitioner to demonstrate the likelihood of a future event, and he or she must
demonstrate that it is more likely than not that future endangerment is possible.

B. “[E]ndanger” means physical harm, not mental or emotional harm.

¶29 Robert relies on dictionary definitions of the terms “endanger” and
“danger” to support his interpretation that the term “endanger” can refer to a risk of
physical, mental, or emotional harm. Conversely, citing WIS. STAT. § 19.35(1),
Wisconsin’s public records law, the State argues that “endanger” refers only to a
risk of physical harm. Both parties also point us to different case law interpreting
the term “endanger” in different contexts.

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¶30 “Endanger” is defined as “bring[ing] into danger or peril of probable
harm or loss.” Endanger, WEBSTER’S THIRD NEW INT’L DICTIONARY
(unabr. 1993). The related term “endangerment” means “[t]he act or … instance of
putting someone or something in danger; exposure to peril or harm.”
Endangerment, BLACK’S LAW DICTIONARY (11th ed. 2019). We have explained
that the definition of “endanger” “clearly encompasses not only those situations
where past conduct [occurred], but also those situations where conduct can be
anticipated.” See Z.E. v. State, 163 Wis. 2d 270, 275, 471 N.W.2d 519 (Ct. App.
1991) (interpreting WIS. STAT. § 48.13(10)’s use of “seriously endanger”).
“Danger” is defined as “the state of being exposed to harm: liability to injury, pain,
or loss,” danger, WEBSTER’S THIRD NEW INT’L DICTIONARY (unabr. 1993), or as
“[p]eril; exposure to harm, loss, pain or other negative result,” danger, BLACK’S
LAW DICTIONARY (11th ed. 2019).

¶31 Because the dictionary definitions of “endanger” and “danger” do not
directly answer the question of whether WIS. STAT. § 786.37(4) requires only a
showing of a risk of physical harm, or also may include a risk of mental or emotional
harm, we turn to “closely-related statutes.” See Kalal, 271 Wis. 2d 633, ¶46.
“Statutes are closely related when they are in the same chapter, reference one
another, … use similar terms[,]” or are in “the same statutory scheme.” Reyes
Fuerte, 378 Wis. 2d 504, ¶27.

¶32 We begin by considering WIS. STAT. § 786.36’s relation to WIS. STAT.
§ 786.37(4). As outlined previously, if a circuit court allows a petitioner’s name
change petition to be confidential, “all records related to the petitioner’s name
change shall be confidential and are exempt from disclosure under [WIS. STAT.
§] 19.35(1).” Sec. 786.36(2m)(a). The records then cannot “be disclosed by the
state registrar of vital records, the register of deeds, or a local registrar.”

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Sec. 786.36(2m)(b). But, “[a] court may order disclosure of confidential
information upon good cause shown and upon determining that the safety of the
petitioner is not jeopardized by disclosure.” Id. (emphasis added). “Jeopardize” is
synonymous with “endanger.” Endanger, MERRIAM-WEBSTER THESAURUS (2005).
“Safety” is defined as “freedom from exposure to danger: exemption from hurt,
injury, or loss.” Safety, WEBSTER’S THIRD NEW INT’L DICTIONARY (unabr. 1993).
Safety clearly connotes physical harm only.

¶33 We next consider WIS. STAT. § 786.36(2m)(a) in relation to WIS.
STAT. § 19.35(1)(am).5 Section 19.35(1)(am) provides that the right to inspect
personally identifiable information does not apply to “[a]ny record containing
personally identifiable information that, if disclosed, would do any of the
following:”

a. Endanger an individual’s life or safety.

b. Identify a confidential informant.

c. Endanger the security, including the security of the
population or staff, of any state prison … jail, … secured
residential care center for children and youth, … mental
health institute, … center for the developmentally
disabled, … or facility … for the institutional care of
sexually violent persons.

Sec. 19.35(1)(am)2.

5
We acknowledge that WIS. STAT. §§ 786.37(4) and 19.35(1)(am)2. are different
standards and we simply cite to § 19.35(1)(am)2. in this context to demonstrate that “could
endanger” in § 786.37(4) does not mean a mere possibility of physical harm. Instead, “could
endanger” in § 786.37(4) means the burden is on a petitioner to demonstrate it is more likely than
not that future physical endangerment is possible. One notable difference between the two statutes
is that a petitioner bears the burden under § 786.37 to demonstrate the likelihood of a future event
by a preponderance of the evidence, while § 19.35(1)(am)2. lacks that same burden. As such, we
do not find § 19.35(1)(am)2.’s use of “would”—as opposed to “could”—material to this case or
§ 786.37(4).

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¶34 The use of the word “safety” in both WIS. STAT. §§ 786.36(2m)(b)
and 19.35(1)(am)2. leads us to conclude that WIS. STAT. § 786.37(4) requires a
showing of a risk of physical harm. Section 19.35(1)(am)2.’s use of “endanger”
clearly covers only physical harm, and not emotional or mental harm due to the
statute’s reference to “life or safety” and “security.” (Emphasis added.) Similarly,
§ 786.36(2m)(b) states that disclosure of confidential information can occur only if,
among other things, the “safety of the petitioner is not jeopardized,” which indicates
that a risk of physical harm is required. (Emphasis added.)

¶35 Robert responds to the State’s reliance on WIS. STAT.
§ 19.35(1)(am)2. by arguing that WIS. STAT. § 786.36(2m)(a)’s cross-reference to
the public records law “was necessary to ensure that confidential name-change
records would not be open to public inspection. There is no reason to import
anything from the [p]ublic [r]ecords [l]aw.” We disagree. While § 19.35(1)(am)2.
uses the phrase “would … [e]ndanger”—as opposed to “could endanger”—and
therefore constitutes a different standard, see supra n.5, both § 19.35(1)(am)2. and
WIS. STAT. § 786.37(4) use the same word “endanger.” We therefore can conclude
that the legislature’s use of “endanger” in § 786.37(4) was deliberate and was
intended to encompass only a risk of physical danger, as in § 19.35(1)(am)2.

¶36 The common law definition afforded to “danger” buttresses our
conclusion. In B.M. v. State, 101 Wis. 2d 12, 16-17, 303 N.W.2d 601 (1981), our
supreme court considered the meaning of “danger” as used in WIS. STAT.
§ 938.34(4d)(b). That statute states that a juvenile may be placed in a secured
correctional facility if, as relevant here, he or she is a “danger to the public.” 6

6
1995 Wis. Act 77 repealed WIS. STAT. § 48.34(4m)(b) and created WIS. STAT.
§ 938.34(4m)(b), but the language “danger to the public” is the same in both the old version and
new version of the statute.

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Sec. 938.34(4d)(b). Using the plain meaning of danger, defined as “the state of
being exposed to harm, liability to injury, pain or loss[,]” the court concluded that
“[w]hile the terms ‘injury’ and ‘pain’ are ordinarily limited to physical harm, ‘loss’
is defined in terms of property.” B.M., 101 Wis. 2d at 18.

¶37 Robert argues that B.M. discusses the definitions of “injury” and
“pain,” but not of “harm.” For that definition, Robert relies on the dictionary, which
defines “harm” as “physical or mental damage: injury.” Harm, WEBSTER’S THIRD
NEW INT’L DICTIONARY (unabr. 1993). We also note that “harm” can be defined as
“[i]njury, loss, damage; material or tangible detriment.” Harm, BLACK’S LAW
DICTIONARY (11th ed. 2019). Robert also compares “could endanger” with the
standard used in WIS. STAT. § 48.13(10), which grants a circuit court jurisdiction
over a child if, among other things, “[t]he child’s parent, guardian or legal custodian
neglects, refuses or is unable for reasons other than poverty to provide necessary
care, food, clothing, medical or dental care or shelter so as to seriously endanger the
physical health of the child.” (Emphasis added.) According to Robert, “The
[l]egislature could have added ‘seriously’ as a modifier or specified actual physical
harm in the confidential name change statute … if that was its intent.”

¶38 We disagree with Robert’s arguments. Prior to 2012, name change
petitions had to be published pursuant to WIS. STAT. ch. 985. However, the
legislature added the confidentiality exception through 2011 Wis. Act 274. In the
process of drafting the confidentiality exception, Wisconsin State Representative
Keith Ripp’s office7 stated in correspondence to the bill’s drafters that “the intent of
the [bill] is to allow a victim of domestic abuse to petition the court for an

7
Representative Ripp was one of the legislators who introduced the bill that later became
2011 Wis. Act 274.

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exemption” to publication of a name change petition. See Legislative Reference
Bureau Drafting File for 2011 Wis. Act 274; see also Kalal, 271 Wis. 2d 633, ¶69
(Abrahamson, C.J., concurring) (“Bill Drafting Records … are by-products of the
drafting process and are not designed to document legislative intent, [but] may
indicate legislative intent, and bill drafting records … have often been used by
courts.”); Burbank Grease, 294 Wis. 2d 274, ¶14 (“[W]e may consult extrinsic
sources ‘to confirm or verify a plain-meaning interpretation.’” (citation omitted)).
The intention behind the legislation—i.e., to provide an avenue for a confidentiality
exception for “domestic abuse” victims—confirms that “endanger” deals with
physical harm, not emotional or mental harm. See WIS. STAT. § 968.075(1)(a)
(“[d]omestic abuse” requires an act resulting in (1) “[i]ntentional infliction of
physical pain, physical injury or illness”; (2) “[i]ntentional impairment of physical
condition”; (3) sexual assault; or (4) “[a] physical act that may cause the other
person reasonably to fear imminent engagement in the conduct described” in
(1)-(3)).

¶39 We therefore agree with the State’s interpretation, and we conclude
that the term “endanger” in WIS. STAT. § 786.37(4) refers to a risk of physical harm.
In total, we hold that § 786.37(4)’s requirement that a petitioner prove “by a
preponderance of the evidence[] that publication of his or her petition could
endanger him or her” means that the petitioner must prove it is more likely than not
that the petitioner could be physically endangered if the name change petition is
published. In the context of the whole sentence and given the express use of the
preponderance of the evidence standard in relation to the term “could,” “could” does
not mean that there is merely any possibility of endangerment. “Could” simply
denotes a possible future event.

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¶40 In support of his interpretation of WIS. STAT. § 786.37(4), Robert cites
the public policy surrounding protecting the identity of minors in Wisconsin.
Namely, Robert cites the confidentiality provisions in WIS. STAT. §§ 48.93(1d)
(records relating to adoptions), 48.396(2)(a) (records relating to the children’s
code), and 767.853 (records relating to paternity actions). We agree with the State
that Robert’s arguments based on public policy are unpersuasive because the
legislature did not provide a different level of privacy for minors involved in name
change petitions under WIS. STAT. §§ 786.36 and 786.37. The standard for allowing
a confidential name change is the same whether the petitioner is a minor or whether
the petitioner is an adult.8

IV. The circuit court’s decision to deny the name change petition

¶41 Having determined the meaning of WIS. STAT. § 786.37(4)’s “could
endanger” standard, we must now consider whether the circuit court erroneously
exercised its discretion by denying Robert’s confidential name change petition. As
previously outlined, the statute required Robert “to show, by a preponderance of the
evidence, that publication of his … petition could endanger him … and that he … is
not seeking a name change in order to avoid a debt or conceal a criminal record.”9
See § 786.37(4). Again, a preponderance of the evidence is something that is “more
likely than not.” Rodriguez, 306 Wis. 2d 129, ¶18.

8
We are also unpersuaded by Robert’s citation to confidential name change cases from
other jurisdictions because those cases interpreted different statutory language.
9
The State does not seriously contend that Robert is “seeking a name change in order to
avoid a debt or conceal a criminal record.” See WIS. STAT. § 786.37(4). Nor is there evidence of
such motive in the record. In fact, the only evidence in the record regarding either situation is that
Robert does not have any personal debt, nor does he have a criminal record. We therefore conclude
that Robert proved by a preponderance of the evidence that he is seeking a name change for reasons
unrelated to avoiding debt or concealing a criminal record.

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¶42 On appeal, we agree with both parties that the circuit court interpreted
“endanger” as requiring Robert to demonstrate that he could face physical harm.
While the court stated that Robert had not provided evidence that he would be
“subject … to harassment and/or intimidation,” the court did not discuss Robert’s
emotional or mental well-being in its conclusion.

¶43 Robert does not advance a position on the circuit court’s interpretation
of the “could” standard that he was required to meet. We note that the court stated
at one point that the proper legal test was whether publication “would endanger the
individual”—as opposed to “could endanger.” But, the court correctly noted the
standard at the start of its decision, stating that the question before it was whether
“publication of the petition could endanger” Robert “because the name change is
for a gender transition.” Taking a closer look at the court’s decision, it is clear that
the court ultimately applied the correct standard. For example, the court concluded
that the standard name change petition procedure “does not provide a danger” to
Robert. In other words, the court concluded that Robert did not meet his burden of
demonstrating that publication of his name change petition could more likely than
not lead to physical endangerment.

¶44 We also conclude that the circuit court did not erroneously exercise
its discretion by denying Robert’s confidential name change petition. Again, our
review of the court’s decision is a limited one. “We will not reverse a discretionary
determination … if the record shows that discretion was in fact exercised and we
can perceive a reasonable basis for the court’s decision.” Sukala v. Heritage Mut.
Ins. Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610 (citation omitted). “We
cannot search the record to find reasons to overturn [a court’s] discretionary
decision[].” State v. X.S., 2022 WI 49, ¶53, 402 Wis. 2d 481, 976 N.W.2d 425

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(citation omitted). In fact, “we generally look for reasons to sustain discretionary
determinations.” Sukala, 282 Wis. 2d 46, ¶8 (citation omitted).

¶45 The circuit court first determined that Robert had failed to show it was
more likely than not that some members of his family could endanger him if his
name change petition were published. This conclusion is supported by the record.
Although Robert alleged that some members of his family “criticized” him and his
mother, and even “cut off contact” with them because of Robert’s gender identity,
he did not allege, or provide evidence, that members of his family had endangered
his physical safety in the past or could do so in the future. Furthermore, as the court
noted, Robert’s family is already aware of his gender identity, and, therefore,
publication of his name change petition in this regard could not likely endanger him
further.

¶46 The circuit court also determined that because Robert “is already
using the name [Robert] … at school and in personal dealings[,]” and because
Robert now has the “physical appearance … of a 17 year old boy, … anyone who
has contact with [Robert] already knows that [he] is in gender transition and uses a
male name.” Robert contends on appeal that the court erroneously exercised its
discretion in reaching this conclusion. Robert asserts that publication “inevitably
means additional members of the public will know [Robert] is transgender and that
increases the risk of harm.”

¶47 While a reasonable judge or court could agree with Robert’s argument
and come to a different conclusion than the circuit court did here, that is not the
standard of review we apply to a confidential name change petition. See Hartung,
102 Wis. 2d at 66. The court could reasonably conclude that all of Robert’s cited
physical attacks were by individuals who already knew his gender identity. In other

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words, under the court’s reasoning, it is not more likely than not that publication of
Robert’s name change petition could endanger him in the future, given that the
individuals who have physically harmed Robert in the past already know of his
gender identity and thus would not be influenced by the publication of the petition.

¶48 At the circuit court, Robert cited multiple reports on violence toward
transgender individuals and cited to Whitaker v. Kenosha Unified School District
No. 1 Board of Education, 858 F.3d 1034, 1051 (7th Cir. 2017), abrogated on other
grounds by Illinois Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020), for
the proposition that transgender individuals experience “discrimination,
harassment, and violence because of their gender identity.” It is clear that the circuit
court did not find Robert’s citations to authority discussing general violence toward
transgender individuals—which pertains to events that did not involve him—
persuasive. And again, while a reasonable judge or court could find Robert’s
citations persuasive, the court here could also reasonably find the citations
unpersuasive because the events recounted in the cited authorities did not occur to
Robert, and it was not likely they could occur to Robert. See Hartung, 102 Wis. 2d
at 66.

CONCLUSION

¶49 A petitioner seeking a confidential name change must file a petition
alleging that publication of his or her name could endanger him or her, and state the
basis for that allegation. A circuit court in its discretion determines whether the
petitioner makes a sufficient showing of endangerment: whether the petitioner
proves that it is more likely than not that he or she could be—a possibility of a future
event—physically endangered if the name change petition is published. If the
petitioner fails to do so, the court “may require the petitioner to comply with [WIS.

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STAT. § 786.37](1).” Again, our review of a court’s decision to deny a confidential
name change is limited to an erroneous exercise of discretion. See Williams, 197
Wis. 2d at 844-45. In this case, the circuit court did not erroneously exercise its
discretion by finding that Robert failed to meet that burden. We affirm.

By the Court.—Order affirmed.

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