Legislature(2011 - 2012)CAPITOL 106
01/27/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB3 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 3 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 3-REQUIREMENTS FOR DRIVER'S LICENSE
8:05:08 AM
CHAIR LYNN announced that the only order of business was HOUSE
BILL NO. 3, "An Act relating to issuance of driver's licenses."
8:05:53 AM
CHAIR LYNN introduced HB 3 as joint prime sponsor. He explained
that the subject of HB 3 was proposed during the Twenty-Sixth
Legislative Session as House Bill 3; however, unlike the one-
page bill presently before the committee, the former House Bill
3 was five pages in length. Chair Lynn described the current
five-year length of issuance of an Alaska driver's license as
reasonable when it is issued to American citizens. He explained
that the bill is designed to address those licenses given to
those who are not U.S. citizens. The proposed legislation would
allow the Division of Motor Vehicles (DMV) to issue a license
with an expiration that matches the length of time a person has
been allowed to stay legally in the U.S.
8:08:12 AM
THOMAS REIKER, Staff, Representative Bob Lynn, Alaska State
Legislature, presented HB 3 on behalf of Representative Lynn,
joint prime sponsor. He stated that the legal duty to decide
how long a person who is not a U.S. citizen may stay in the U.S.
belongs to the U.S. Department of Homeland Security ("Homeland
Security"); therefore, the joint prime sponsors do not think
that the State of Alaska should be issuing a legal document that
outlasts that person's legal stay in the U.S. Mr. Reiker echoed
Chair Lynn's statement that under HB 3, the DMV would issue a
license that is valid only for the period of authorized stay,
and he added that if the person is authorized to stay
indefinitely, then the DMV would issue a license to that person
that must be renewed annually, so that the DMV can ensure that
the person is still legally in the U.S.
MR. REIKER stated that the joint prime sponsors wanted to draft
the bill as simply as possible, which is why HB 3 does not
address the issue of identification (ID) cards. Currently, ID
cards are issued for five years under regulations, and the joint
prime sponsors did not want to set that requirement in statute.
He said the DMV has related that should HB 3 pass, it will set
the same regulations for IDs as for driver's licenses.
8:10:56 AM
WHITNEY BREWSTER, Director, Division of Motor Vehicles,
Department of Administration, in response to Representative
Petersen, stated that anyone with a license from another state
and applying for an original Alaska driver's license would be
required to show proof of the following: legal name, date of
birth, social security number, and residential address. In
response to a follow-up question, she confirmed that currently a
person from another country who shows the DMV a valid passport
in order to obtain a driver's license would be issued a five-
year license.
8:12:23 AM
MS. BREWSTER, in response to Representative Seaton, said the DMV
would provide someone who comes in with a valid passport a five-
year driver's license, if that person also showed proof of
residential address. In response to a follow-up question, she
said proof of residential address could be supplied through the
following: an Alaska voter registration card, a utility bill, a
vehicle title, a paycheck stub, a cancelled check or bank
statement, a hotel or shelter document, a vehicle title, a
medical assistant card, a public assistance card, and a mortgage
or rental document. She said the person has to show some sort
of proof of residential address, and that address is then
printed on the license or ID card. She confirmed that a person
could have a note sent from a university dormitory or bring in a
piece of mail that they sent to themselves. She said the person
should indicate to the DMV if there has been a change of
address, but would not be required to show proof of residential
address upon renewal.
MS. BREWSTER, in response to Representative Seaton, said
depending upon the passage of HB 3, the DMV would promulgate
regulations that would describe the process. She stated her
assumption that someone with a document that expired in six
months would be required to come in to the DMV office and show a
document that has extended his/her stay so that the DMV could
then issue an extended license.
REPRESENTATIVE SEATON questioned the zero fiscal note.
MS. BREWSTER responded that HB 3 would allow the DMV to
promulgate regulations, and that would entail no extra
expenditure.
8:20:02 AM
MR. REICKER, in response to Representative Johansen, offered his
understanding that the meaning of "indefinite" stay would apply
to someone who is presently in the U.S. seeking asylum.
8:21:03 AM
MS. BREWSTER concurred with Mr. Reiker's statement. She
indicated that currently the DMV issues those with a "pending
status" a five-year license. In response to Representative
Petersen, she said the DMV would charge the same $20 fee for a
license, no matter whether the license was issued every five
years or every six months. In response to a follow-up question,
she said a person from another country who wants to get an
Alaska driver's license has to take a driving test, as well as a
written and vision test.
8:23:06 AM
REPRESENTATIVE SEATON questioned why, if Homeland Security
decides to give someone permission for an indefinite stay in the
U.S., the State of Alaska would want to override that by
requiring the person to come into the DMV annually.
MR. REICKER prefaced his answer by offering his understanding
that an indefinite stay means that Homeland Security is
determining their interest in the person's status. He
reiterated his opening statement that the joint prime sponsors
do not want the state to give the person a license that extends
beyond the time that is given the person by Homeland Security.
8:25:30 AM
MS. BREWSTER, in response to Chair Lynn, indicated concurrence
with Mr. Reiker's explanation.
8:25:36 AM
REPRESENTATIVE P. WILSON questioned how the DMV would know if a
person had been "downgraded" from indefinite status to six-month
status, since the person could show the DMV the same papers they
showed to prove indefinite status.
MS. BREWSTER responded that Representative Wilson has a good
point. She noted that there is an electronic method available
that could be used to verify the information given. She relayed
that the system is called, "Systematic Alien Verification For
Entitlement System"; however, she said the state currently is
not hooked up to that system. In response to a follow-up
question, she said it would be up to the legislature whether the
DMV would implement the system. She offered her understanding
that the aforementioned system would cost approximately
$200,000.
8:28:01 AM
REPRESENTATIVE SEATON questioned why the price of that system is
not reflected in the fiscal note if having the system is
necessary for the division to comply with the proposed bill.
MS. BREWSTER responded that that would be in a fiscal note
related to the regulations that would have to be passed. In
response to a follow-up question, she explained that the bill
would be strictly for those who have "indefinite" status; the
DMV does not address a large number of those with pending
status. She offered her understanding that the proposed
legislation does not require the DMV to purchase the
aforementioned system, but would allow the DMV to adopt its own
regulations to acquire the system, at which point the division
would put forth a fiscal note.
8:31:16 AM
REPRESENTATIVE JOHANSEN, recalling that Ms. Brewster said there
are few cases related to those with pending status, suggested
that the DMV could simply call U.S. Customs to get verification.
MS. BREWSTER said that is what is done at this time, and
concurred that that method can suffice until the legislature
takes up the issue of appropriating the $200,000 necessary for
the purchase of the system. In response to Chair Lynn, she
speculated that the DMV's main office processes approximately
one pending status case a day.
8:33:03 AM
REPRESENTATIVE KELLER questioned what the proposed legislation
would prevent. He suggested a factor to consider is what a
person needs when he/she comes into the U.S., for example:
health care or public school. He surmised that an ID or
driver's license would be helpful in applying for entitlement
programs in the U.S.
8:34:12 AM
MR. REICKER said he thinks a big issue is reciprocity. He
explained that a person with an Alaska driver's license can go
to any state in the Union and his/her license will be treated as
valid. He echoed Representative Keller's statement that that
license serves as a key to other services. He reiterated that
the joint prime sponsors do not want the benefits of the
driver's license to be extended beyond what the federal
government has deemed appropriate.
8:35:23 AM
REPRESENTATIVE P. WILSON offered her understanding that because
of the use of the word "may" in the proposed legislation, if HB
passed, the DMV would not be required to do anything.
MS. BREWSTER indicated that she understood that to be correct.
REPRESENTATIVE P. WILSON expressed concern that the bill does
not do anything. She suggested changing the language to
"shall".
8:36:16 AM
REPRESENTATIVE GRUENBERG related the following:
As I understand it, Ms. Brewster, you do not feel you
have the statutory authority to do it now, and you
can't do it without this bill. So, you may not do it
now unless the bill is passed and says you may do it.
Is that correct from what you've said?
MS. BREWSTER responded, "If I understood you correctly, yes."
8:36:47 AM
REPRESENTATIVE GRUENBERG asked Ms. Brewster to confirm whether
she previously said that the division does not have the
authority to issue driver's licenses for a period of less than
five years, but already has the authority to issue IDs for less
than five years.
MS. BREWSTER responded that the statutes addressing ID cards are
brief and essentially point to statute addressing driver's
licenses. She cited AS 18.65.310(b), related to ID cards, which
read as follows:
(b) A person may obtain an identification card
provided for in (a) of this section by applying to the
department on forms and in the manner prescribed by
the department.
MS. BREWSTER concluded that that statute makes it possible to
set those standards through regulation.
8:38:09 AM
REPRESENTATIVE GRUENBERG, with respect to the previous concerns
about the fiscal note, related that the statute that addresses
fiscal notes is AS 24.08.035(a), from which he paraphrased the
first sentence, which read as follows:
(a) Before a bill or resolution, except an
appropriation bill, is reported from the committee of
first referral, there shall be attached to the bill a
fiscal note containing an estimate of the amount of
the appropriation increase or decrease that would
result from enactment of the bill for the current
fiscal year and five succeeding fiscal years or, if
the bill has no fiscal impact, a statement to that
effect shall be attached.
REPRESENTATIVE GRUENBERG asked Ms. Brewster if, given that is
the standard, she is saying that she will not be seeking an
increase in the appropriation for the DMV.
MS BREWSTER responded, "No, the DMV is not requesting an
increase or decrease in its appropriation for this bill."
REPRESENTATIVE GRUENBERG asked how the public's waiting time at
the DMV may be affected if the DMV has to make calls [to U.S.
Customs regarding those people in the U.S. on temporary status].
MS. BREWSTER replied that this would have no impact on the
amount of time a person waits at the DMV. She said, for
example, that a manager in the back of the office could be
making the necessary call, while others were being served by the
front counter staff.
8:41:34 AM
REPRESENTATIVE GRUENBERG echoed the concerns of the committee
that there is no definition for an authorized stay that is
indefinite.
8:42:46 AM
MR. REICKER suggested that the federal definition could be used
or perhaps the words, "a document without ... an expiration
date."
8:43:17 AM
MS. BREWSTER said she does not disagree that a definition would
be helpful; however, she said she does not have a definition
ready at this time. She said she could consult with the U.S.
Citizen and Immigration Services (USCIS) and work with the joint
prime sponsors to come up with a definition.
8:43:47 AM
REPRESENTATIVE SEATON expressed his primary concern is for
foreign students who are encouraged to come to Alaska, most of
whom will obtain only a student ID. He asked Ms. Brewster, "So,
is there any necessity for those people that aren't going to
drive to get an Alaska ID?"
MS BREWSTER replied that if those people are not going to drive,
then they would not need a state ID; their student ID would
suffice.
8:45:01 AM
CHAIR LYNN opened public testimony.
8:45:16 AM
JEFFREY MITTMAN, Executive Director, American Civil Liberties
Union (ACLU) of Alaska, expressed concerns regarding the
constitutionality of the proposed legislation. He said the
issues raised as a result of HB 3 are those issues that have
come before the U.S. Supreme Court for the last 70 years. He
stated that the primary issue is what the role is between the
state and federal government. Generally, he said, the federal
government addresses the issues of immigration and who can
lawfully be in the country, and is sensitive to any state's
impingement on that area. For example, he relayed that in Hines
v. Davidowitz, 312 U.S. 52, 59-60 (1941), the U.S. Supreme Court
found a Pennsylvania statute requiring an annual renewal of an
ID card unconstitutional. He said a series of (related) cases
followed, including a recent decision in Lozano v. City of
Hazelton, 620 F.3d 170, 220 (3d Cir. 2010). He stated that at
issue here is the driver's license, which he said is meant to
determine who can safely and legally drive a car, not to be used
as an identification document.
8:47:48 AM
MR. MITTMAN said that in addition to federal problems, there are
state constitutional problems. Under the state constitution, he
reviewed, there are equal protection rights, and he indicated
that those rights could be violated under HB 3. He said the
courts typically look very carefully at instances where an
individual has been burdened based on his/her immigration
status. He said that is what is known as a suspect class, and
it is when an individual is treated differently without an
appropriate governmental interest.
MR. MITTMAN concluded that as drafted, the proposed legislation
would be subject to findings of unconstitutionality both on
federal and state grounds. In response to Chair Lynn, he said
if it is clear that the bill has implications for residency
status that relate to immigration status, that would be an
impingement on a federal area of law. He pointed to language in
the proposed legislation that could be implied as such
[contained in the first sentence of subsection (d), on page 1,
lines 4-7, which read as follows]:
(d) Under regulations adopted by the department, the
department may issue to a person a driver's license
with a duration of less than five years if the person
is authorized to stay in the United States for less
than five years or the period of authorized stay is
indefinite.
8:49:26 AM
CHAIR LYNN noted that Alaska is one of only six states that does
not have a legal presence requirement, and he questioned whether
all the other states [that do] are violating the Constitution.
MR. MITTMAN explained that it is not the requirement of a legal
presence, per se, that is problematic, but rather it would be
unconstitutional to require someone to go through a different
licensing process based on his/her immigration status. In
response to a follow-up question regarding the requirement that
certain individuals wear corrective lenses, he explained that
for those individuals, wearing glasses affects their ability to
see and to operate a vehicle, which is clearly related to the
purpose of the driver's license. He offered his understanding
that there have been no court cases that have found that "the
class of individuals with diminished eyesight that is not a
disability ... [is] a suspect class."
8:51:53 AM
REPRESENTATIVE KELLER talked about dual citizenship - state and
federal - and how important that is to Alaskans. He asked Mr.
Mittman to comment.
8:53:04 AM
MR. MITTMAN said there are broad areas of state citizenship
regulation, which fall "squarely within the realm of what state
regulations can be drawn up." He stated that the issue here is
that the bill clearly relates to an area that the federal
government holds as its own, and typically, state intervention
into federal immigration issues is generally disfavored. Mr.
Mittman said it would be difficult to find instances where a
federal or state court would interfere with a state's right
regarding state constitutionality in relation to citizenship of
that state. He emphasized, "But where there's an existing
scheme where the federal government establishes rules as to non-
U.S. citizens who can enter the country, state regulations that
interfere in that area are really suspect."
MR. MITTMAN, in response to Chair Lynn, clarified that the issue
has to do with the first [sentence of subsection (d), text
provided previously]. He said individuals who are authorized to
stay for less than five years are individuals who presumably are
non-U.S. citizens from outside the country. Regulation of entry
and exit and determination of status within the U.S. are made by
the federal government; therefore, the issue is clearly related
to federal immigration status. In response to a follow-up
question, he reemphasized that the problem is that "if any state
were to seek to adopt a regulation like this that impinged on
federal regulation standards, that's where the constitutional
infirmities begin."
8:56:14 AM
MR. MITTMAN, in response to Representative Keller, explained
that the issue at hand is that under HB 3, two separate licenses
would be created: a standard five-year driver's license and a
lesser class of driver's license given to individuals who would
then seek to renew the license. He cited Hines v. Davidowitz,
312 U.S. 52, 59-60 (1941), which required aliens to have a
different ID card that had to be renewed annually. The card was
required in order to obtain a driver's license. He stated,
"Because Congress reserved that area for itself, that
requirement was found unconstitutional." He explained that the
dual class of driver's license [proposed under HB 3] would not
be based on whether the individual licensed was a qualified
driver, but would be based on the person's federal immigration
status.
8:58:10 AM
REPRESENTATIVE GRUENBERG said Mr. Mittman has related the issue
of supremacy - whether the field is an exclusively federal one -
and the issue of equal protection. He requested that Mr.
Mittman submit his legal citations to the committee. He
expressed concern about a state constitutional right that Mr.
Mittman has not mentioned, and that is that the Alaska State
Supreme Court has held on several occasions that an Alaska
driver's license represents an important property interest that
is protected by the due process clause of the Constitution of
the State of Alaska. He cited Javed v. the Department of Public
Safety Division of Motor Vehicles, 921 p2nd 620. He said, "I'm
wondering, since that is a fundamental right, whether that might
be impinged or have constitutional issues, as well."
9:00:09 AM
MR. MITTMAN responded:
Because the status of one's presence in the country -
immigration or alien status - is what's known as a
suspect class, if ... something is considered a
property right, there could be significant due process
concerns if an impingement on that right is drawn in
such a way that it is not tailored appropriately -
does not meet the balancing that the courts applied to
determine whether a government or regulation is
appropriately tailored.
So, again, it's not that a state government might not
be able to infringe on the right; it's ... how it's
done - how narrowly or how broadly - and what interest
it's serving. So, for example, if it were drawn up in
such a way as the purpose it was serving were to
ensure that a driver were a safe driver or that the
streets could be appropriately negotiated, that might
be something that the courts would look on kindly. If
the intention is to ensure that somebody is meeting
the requirement of the Department of Homeland Security
of federal immigration requirement - that's something
the courts could look askance at.
9:01:30 AM
REPRESENTATIVE GRUENBERG noted that HB 3 had not been referred
to the House Judiciary Standing Committee, and he opined that
the issues being discussed warrant the bill being referred to
that committee. He then observed that there does not appear to
be a connection between the length of the license and anything
having to do with driving safety. He asked, "Does the
constitution require, to be upheld, that there be some kind of a
nexus between the limitation and driving?"
9:02:32 AM
MR. MITTMAN indicated that Representative Gruenberg had
highlighted a key point. He said it is clearly within the
state's power to regulate its streets and highways and to
determine who has an opportunity to drive based on state-
required driving skills. He added, "The problem here is that
it's difficult to see how one's immigration status relates to
one's ability to drive a vehicle."
9:04:04 AM
MR. MITTMAN, in response to a question from Chair Lynn, said the
issue is what the purpose of a document is. He said an Alaska
driver's license would never be presumed to determine whether or
not somebody has a right to stay in the country. If somebody is
issued a license for five years, but they are only permitted to
stay in the country for three years, than regardless of the
length of the driver's license, at the end of three years, their
stay in the country ends. In response to a remark from Chair
Lynn, Mr. Mittman stated that the way HB 3 is drafted, it would
put the burden on certain people to have to make multiple trips
to the DMV to renew their driver's licenses; it would turn a
document given to people who can safely drive a vehicle into one
that reflects their immigration status, which is not permitted
by the federal government. He said the bill mixes function.
9:07:31 AM
REPRESENTATIVE JOHANSEN remarked that a driver's license may not
serve as proof of citizenship before a federal court, but in
"the real world" a driver's license can "get you things." He
concurred with Representative Keller's previous remarks. He
indicated that there is no way to outguess what the courts will
decide. He stated his support of the bill and his desire to see
it moved out of committee expediently.
9:08:59 AM
REPRESENTATIVE KELLER said Alaska has as much right to protect
its sovereignty as the federal government does to protect its
sovereignty. He questioned Mr. Mittman's citation of a case
dating back to 1941. He concurred with Representative Johansen
that the bill should move out of committee.
9:09:50 AM
REPRESENTATIVE SEATON asked Mr. Mittman if there are other folks
who have indefinite stay documentation from Homeland Security
other than refugees and asylum seekers.
MR. MITTMAN prefaced his response by saying that his knowledge
of federal immigration law is limited. Notwithstanding that, he
offered his understanding that asylum seekers and refugees are
individuals who have differential state statuses that are under
review and, thus, could be affected by the proposed legislation.
He reminded the committee that the U.S. Supreme Court did look
at this issue when hearing Lozano V. City of Hazelton, 620 F.3d
170,220 (3d Cir. 2010). He stated that the federal courts are
continuing to find that these sorts of cases are problematic.
Mr. Mittman further noted that in Alaska's court system there
was another case regarding the same issue, Department of Revenue
v. Andrade, 23 P.3d 58, 78(Alaska 2001). He explained that he
cited both cases to show that the issue has been heard recently
by both the state and federal court system. In response to a
follow-up question from Representative Seaton, he said he is not
aware of other classes that may be implicated, but will look
into it.
9:13:01 AM
CHAIR LYNN, after ascertaining that there was no one else who
wished to testify, closed public testimony.
9:13:27 AM
REPRESENTATIVE GRUENBERG emphasized his concern regarding the
constitutional issues raised through HB 3, and he opined that
either the House State Affairs Standing Committee must fulfill
its duty in considering these issues or he will ask that the
bill be referred to the House Judiciary Standing Committee. He
cautioned against treating this issue lightly.
9:15:32 AM
REPRESENTATIVE KELLER expressed appreciation of Representative
Gruenberg's concern, and said it is completely appropriate to
ask for an attorney general's opinion regarding the Constitution
of the State of Alaska. Referring back to discussion about the
definition of indefinite, he said he does not see that as a
reason to hold the bill back in committee.
9:16:24 AM
REPRESENTATIVE GRUENBERG, regarding the use of "indefinite",
clarified that he wants to be sure that the bill is drafted
properly, which he said would only take a day or so. The most
important issue is that of constitutionality, he said.
CHAIR LYNN stated his intention to get the attorney general's
opinion.
9:17:51 AM
REPRESENTATIVE JOHANSEN responded to Representative Gruenberg's
comments regarding the import of the bill and said by no means
is he taking the issue lightly. He opined that just because
someone from ACLU says there are legal problems with the bill
does not mean a House Judiciary Standing Committee referral
should be sought. He stated that he thinks the bill should move
out of committee.
CHAIR LYNN said he would prefer to move the bill out of
committee; however, as a courtesy to all committee members, he
would first seek the opinion of the attorney general.
9:20:04 AM
MR. MITTMAN, in response to Representative Gruenberg, confirmed
that he would deliver his memorandum to committee members by the
end of day [and subsequently it was added to the committee
packet].
9:20:45 AM
REPRESENTATIVE SEATON reiterated his concern about the issue of
indefinite stay. He said he thinks refugees and asylum seekers
are a small enough group that Homeland Security has a handle on
them, and no other group gets the same status. He said he would
probably offer an amendment to address this concern. In
response to Chair Lynn, he explained that the amendment would be
to remove the final sentence in the proposed bill regarding
indefinite stay. He offered further explanation.
9:24:30 AM
CHAIR LYNN said his heart goes out to refugees and asylum
seekers. Nevertheless, he stated that being in the U.S., in
Alaska, and getting a driver's license is a privilege. He
opined that each state has a right to set standards regarding
their driver's licenses.
9:25:04 AM
CHAIR LYNN announced that HB 3 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB 3 Driver's Licenses.pdf |
HSTA 1/27/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM |
HB 3 |
| 02 HB 3 Sponsor Statement.pdf |
HSTA 1/27/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 3 |
| 03 HB 3 Current Statute.pdf |
HSTA 1/27/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 3 |
| 04 HB 3 Fiscal Note 1.pdf |
HSTA 1/27/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM |
HB 3 |