Legislature(2011 - 2012)CAPITOL 106
02/01/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HJR13 | |
| HB3 | |
| HB14 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 13 | TELECONFERENCED | |
| += | HB 3 | TELECONFERENCED | |
| += | HB 14 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 3-REQUIREMENTS FOR DRIVER'S LICENSE
8:18:16 AM
CHAIR LYNN announced that the next order of business was HOUSE
BILL NO. 3, "An Act relating to issuance of driver's licenses."
CHAIR LYNN reviewed that at its last hearing of HB 3, on January
27, 2011, the committee heard from [Jeffrey Mittman] of the ACLU
regarding concerns about constitutionality. He opined that the
committee has good legal advice both from the Department of Law
and Legislative Legal and Research Services. The former
submitted a memorandum to the committee stating that the
department has no concerns regarding the constitutionality of HB
3, and the latter has confirmed that many other states have
implemented the provisions of HB 3 without meeting with problems
of constitutionality. He said that in response to previously
stated concerns from some committee members, an amendment had
been prepared that would change the requirement under HB 3 that
anyone in the United States under a temporary status would have
to renew his/her driver's license every 30 to 90 days, to every
year. He opined that HB 3 is constitutional, and he expressed
his wish to see the bill move from committee today.
8:20:52 AM
THOMAS REIKER, Staff, Representative Bob Lynn, Alaska State
Legislature, provided an update on HB 3 since its last hearing,
on behalf of Representative Lynn, sponsor. He said a
representative of Legislative Legal and Research Services said
48 states have legal presence requirements in place for
obtaining a driver's license. Furthermore, 30 states also tie
the expiration date of their drivers' licenses to a person's
legal presence in the U.S. Therefore, he concluded that the
ACLU's argument that determining a resident's length of stay
would violate the supremacy clause, that requiring license
renewal for reasons other than driving ability would be
unreasonable, and that the "risk of error is high" seems
spurious. He said the Department of Law's response [written by
Erling Johansen on behalf of the attorney general, dated January
28, 2011, included in the committee packet] to the concerns of
the ACLU was that there was no basis upon which to challenge the
constitutionality of HB 3.
8:24:40 AM
REPRESENTATIVE GRUENBERG noted that Mr. Johansen's memorandum
refers to the bill, not to Mr. Mittman's memorandum.
8:25:32 AM
MR. REIKER said Mr. Mittman's memorandum was forwarded to Mr.
Johansen with a request that he read it, and he stated his
assumption that Mr. Johansen would have done so. In response to
follow-up comments from Representative Gruenberg, he said he
would review all correspondence between himself and Mr.
Johansen, and bring to the committee any which suggests that Mr.
Johansen had, indeed, read the memorandum from Mr. Mittman.
8:27:08 AM
GERALD LUCKHAUPT, Assistant Revisor of Statutes, Legislative
Legal Counsel, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), in response to Chair Lynn,
confirmed that he does not see any legal problems with HB 3.
He relayed that currently 48 states have a legal presence
requirement; Washington and New Mexico do not, but Washington is
in the process of passing similar legislation. He noted that
during the January 25 House State Affairs Standing Committee
hearing on HB 3, Mr. Mittman had cited Hines v. Davidowitz to
prove that a state and municipality cannot do anything in regard
to aliens. Mr. Luckhaupt said the U.S. Supreme Court devised a
three-part test, with the part most pertinent to this issue
being a determination of whether or not a state is attempting to
regulate the admission of aliens into the country. He said the
State of Alaska is not attempting to do so through HB 3; it
would merely be asking for documents that show that the federal
government has made that determination. He stated that he has
not been able to find cases to support Mr. Mittman's argument,
but he has found 10 cases over the last eight or ten years where
that argument has failed. He concluded that this is something
that is up to the legislature, but he noted that there are
already regulations related to this.
8:32:41 AM
REPRESENTATIVE SEATON explained that he is not trying to figure
out if this is legal to do, but rather whether it should be
done. He said the categories that are most often appointed
indefinite stays by the U.S. Department of Homeland Security
("Homeland Security") are asylum seekers, refugees, diplomats,
and foreign spouses of American citizens who are waiting for
status to be resolved. He asked if there is any legal reason
why the state would determine to not accept the decisions of
Homeland Security when those decisions are made for each
individual in the aforementioned categories.
8:35:06 AM
MR. LUCKHAUPT responded that he does not have a lot of personal
experience with that issue, but he related a story regarding a
co-volunteer firefighter's wife who was from another country and
took about a year to go through the process, but was able to get
a driver's license. He said indefinite stays are for shorter
periods of time. He reiterated that this is a choice for the
committee to make. He related that the State of Delaware waived
renewal fees for people in the indefinite state status, so that
those people could renew for the five-year length of a driver's
license without even coming into the office, and then after five
years would pay the renewal fee.
8:38:06 AM
MR. LUCKHAUPT, in response to Representative Seaton, said he
thinks that under HB 3, those whose authorized stay in the
country indefinitely could be allowed to renew their license by
mail and without charge if the division adopted regulations to
that effect.
8:39:24 AM
REPRESENTATIVE GRUENBERG asked if the division has the ability
to do that under current law.
MR. LUCKHAUPT responded that AS 28.15.101 addresses the issue of
expiration and renewal of drivers' licenses. He cited the first
sentence of subsection (a) of that statute, which read as
follows:
(a) Except as otherwise provided in this chapter,
a driver's license expires on the licensee's birthday
in the fifth year following issuance of the license.
MR. LUCKHAUPT stated, "This isn't going to be a five-year
license anymore; ... it's going to be a one-year license
expiration period, and they can go ahead and set how that
renewal process will occur." He continued, "We don't have
anything that says that a one-year license expires and can't be
renewed in any particular process; they'll be able to identify
that process by regulation if they choose to."
8:40:53 AM
ERLING JOHANSEN, Assistant Attorney General, Labor & State
Affairs Section, Civil Division (Anchorage), Department of Law
(DOL), confirmed that before writing the memorandum to the House
State Affairs Standing Committee, he had read [Mr. Mittman's]
memorandum dated January 27, 2011.
8:41:42 AM
WHITNEY BREWSTER, Director, Division of Motor Vehicles (DMV),
Department of Administration, responded that conceptually the
DMV would not be opposed to waiving fees or allowing a by-mail
process for licenses that are issued for less than a five-year
period, but AS 28.15.271 (a)(1)(A) states that the fees for
drivers' licenses and permits, "including but not limited to
renewals," is $20 for "each license fee"; therefore, she stated
that although she is certain that Mr. Luckhaupt has studied the
matter closely, she would like to confer with the Department of
Law on this matter.
8:43:13 AM
MS. BREWSTER, in response to Chair Lynn, confirmed that the DMV
currently honors letters received from the U.S. Customs and
Immigration Service Agency extending a person's immigration
document, and that would not change under HB 3.
8:44:25 AM
CHAIR LYNN reopened public testimony, [which had been closed on
1/27/11].
8:44:41 AM
JEFFREY MITTMAN, Executive Director, American Civil Liberties
Union (ACLU) of Alaska, said he thinks Mr. Luckhaupt's testimony
focused on the issues that he raised in his memorandum. He
indicated that the issue is not the legal requirement per se,
but the details therein. He clarified that the concern he had
raised at the previous hearing on HB 3 was that under HB 3, the
state would be interpreting a variety of federal immigration
documents and issuing what could be interpreted as two classes
of licenses to those who are legally present in the U.S.
8:45:56 AM
MARA KIMMEL, Alaska Immigration Justice Project (AIJP), stated
that the Alaska Immigration Justice Project is the only
nonprofit agency in Alaska that provides legal services to non-
citizen victims of domestic violence and other violent crimes,
such as human trafficking and sexual assault. She explained
that AIJP is concerned about the affect of the proposed
legislation on these clients. She said HB 3 would prevent these
clients, who are victims of crime and are in the process of
applying for legal status or who have applied but do not have
any documentation from the U.S. Department of Homeland Security,
from obtaining a license or state identification card. She said
this could prevent these people from obtaining safety from their
perpetrators. Ms. Kimmel said the legislature is well aware
that Alaska suffers from inordinately high rate of sexual and
domestic violence. She noted that in May 2010, the Justice
Center at the University of Alaska reported that almost half of
the women in Alaska experience domestic violence, and almost 40
percent experience sexual violence. Ms. Kimmel said there are a
variety of security issues that are raised by HB 3. She
reiterated that the proposed legislation would hurt her clients
and prevent them from getting the help they need. In response
to a question from Chair Lynn, she said the people whom she
referenced are currently not able to obtain a driver's license.
8:48:30 AM
CHAIR LYNN closed public testimony.
8:49:01 AM
REPRESENTATIVE GRUENBERG asked Ms. Kimmel why the people whom
she referenced are not currently able to obtain a driver's
license and whether there is any amendment to HB 3 that would
help these women.
8:49:27 AM
MS. KIMMEL responded that there really is not. She explained
that if the bill goes forward, there is no allowance for those
who are in the process of applying for [legal presence] status
or don't get told that they are in fact eligible to get a
driver's license. She emphasized that obtaining a driver's
license is absolutely critical to the safety of these people.
She added that the zero fiscal note that is attached to the bill
is "just not practical at all."
CHAIR LYNN questioned that someone in a dangerous situation
would not drive a vehicle to get away from that situation just
because he/she did not have a driver's license. He asked,
"Which would be worse, being caught without a driver's license
or having damaging sexual or domestic violence applied to them?"
MS. KIMMEL answered that that is an untenable position in which
to put a victim. She pointed out that if a victim gets pulled
over and is found to be driving without a driver's license,
he/she gets put into removal proceedings.
8:51:38 AM
REPRESENTATIVE GRUENBERG said he is chilled by this information.
He asked Mr. Johansen if the Administrative Procedure Act
governs the regulatory process of the Department of
Administration.
MR. JOHANSEN answered, "AS 44.62 does."
REPRESENTATIVE GRUENBERG asked if HB 3 would have to be amended
in order for there to be authority for the division to decide
not to charge any fees and to waive the requirement that the
person come in to the DMV office "every other time."
MR. JOHANSEN offered his understanding that if the fee is set
out in statute currently, then it would not be amendable through
regulation, but would require an amendment to statute. He said
he is not familiar with the specific requirement regarding
people coming in to the DMV in person; however, he surmised that
if that is in statute, it would still be controlled by the
statute. However, if that requirement appears in regulations,
he said, then the department would have control over it.
8:54:16 AM
MR. LUCKHAUPT, in response to Representative Gruenberg, said he
did not bring the Delaware regulations with him, but could
provide them if needed. He pointed out that AS 28.15.101 is the
expiration and renewal section, which addresses a five-year
license, and states that a person can renew within one year of
the expiration date. He said, "If you get a one-year license,
you can automatically renew under this; it doesn't make sense."
He indicated that the department has been given authority to
deal with regulations addressing the shorter length licenses.
He said his extensive experience writing statutes has shown that
if a statute does not address a particular situation, then that
gives the department the authority to address the situation
[through regulation]. He said Alaska has never before
authorized a license of less than five years duration, and
because the statute addresses renewals related to a five-year
period, then a one-year period is not covered under statute. He
said an amendment could be added to clarify that the department
would have the authority to provide for extensions and renewal
of shorter-length licenses.
8:56:33 AM
MR. LUCKHAUPT, in response to Representative P. Wilson,
confirmed that nowhere in statute does it state that a woman in
trouble cannot call the police or go next door for help.
8:57:43 AM
REPRESENTATIVE SEATON moved to adopt Conceptual Amendment 1, as
follows:
On page 1, following line 9:
Insert "(e) A driver's license issued for less
than five years may be renewed by mail and fees
waived."
CHAIR LYNN announced that there being no objection, Conceptual
Amendment 1 was adopted.
8:58:43 AM
REPRESENTATIVE SEATON, in response to Mr. Luckhaupt, confirmed
that the intent of Conceptual Amendment 1 is that the time
period is up to the normal five-year period. In response to
Representative Keller, he confirmed that Conceptual Amendment 1
is permissive; it is not a requirement.
9:00:19 AM
CHAIR LYNN moved to adopt Amendment 2, labeled 27-LS0010\E.3,
Luckhaupt, 1/27/11, which read as follows:
Page 1, lines 8 - 9:
Delete "may not"
Insert "shall"
Page 1, line 9:
Delete "greater than"
9:00:29 AM
REPRESENTATIVE JOHANSEN objected for discussion purposes.
9:00:43 AM
Mr. REIKER explained that Amendment 2 clarifies that a person
assigned an indefinite, durational, or provisional period of
authorized stay would receive a driver's license for one year
[when otherwise qualified to receive the license]. At the end
of the one year, the division would review the person's status
to determine whether to renew the license.
9:01:28 AM
REPRESENTATIVE JOHANSEN said he has confidence in the DMV's
ability to handle flexibility, but he would not oppose the
amendment. He removed his objection to Amendment 2.
CHAIR LYNN announced that there being no further objection,
Amendment 2 was adopted.
9:01:59 AM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 3, as follows:
On page 1, line 4:
Between "under" and "regulations"
Insert "reasonable"
REPRESENTATIVE GRUENBERG said there are a number of cases in
Alaska that require procedural safeguards and well-drafted
regulations. He cited State of Alaska v. Beans 965 p. 2nd 725,
September 1998. He said in at least 25 instances, statutes
state that departments may adopt "reasonable" regulations. He
expressed concern that the regulations adopted by departments be
rational rather than arbitrary, and he explained that that is
what he means when he uses the word "reasonable" in Amendment 3.
9:04:20 AM
REPRESENTATIVE KELLER objected to Amendment 3. He opined that
Amendment 3 would invite someone - often the courts - to make
the determination whether a regulation is reasonable, which is a
standard that already exists. He opined that making this
specification would invite court action.
9:05:32 AM
REPRESENTATIVE P. WILSON concurred with Representative Keller.
9:05:48 AM
REPRESENTATIVE JOHNSON stated his assumption that Representative
Gruenberg would say that the 25 statutes he mentioned are
reasonable, while all the others are not because they do not use
the word "reasonable". He concurred with Representative Keller.
9:06:34 AM
MR. LUCKHAUPT indicated that regardless of whether or not the
word reasonable is used in statute referring to department
regulations, all regulations must be reasonable. In response to
a Representative Gruenberg, he confirmed that he is saying that
regulations must be reasonable as a matter of law, and that
would be read into statute, even without the adoption of
Amendment 3. He said, "That's part of the analysis." He
offered further details. In response to Representative
Petersen, he said the legislature's grant of authority to the
departments is that they adopt regulations that are reasonable
and relate to the subject matter, but the legislature does not
assume that all the regulations the departments adopt are
reasonable. He said lawmaking is the purview of the
legislature, but departments are allowed to add the details that
probably do not need to be included in statute.
9:10:50 AM
REPRESENTATIVE GRUENBERG asked Mr. Johansen if he agrees with
Mr. Luckhaupt's interpretation.
MR. JOHANSEN responded that in order for regulations to be
upheld, they have to be consistent with the statute under which
they are developed. He said, "It's probably specific to each
situation, but generally speaking, regulations need to be
reasonable."
9:12:29 AM
REPRESENTATIVE GRUENBERG withdrew his motion to adopt Amendment
3.
9:12:37 AM
REPRESENTATIVE KELLER moved to report HB 3, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVE JOHANSEN objected.
REPRESENTATIVE GRUENBERG explained why he removed Amendment 3.
REPRESENTATIVE JOHANSEN removed his objection. There being no
further objection, CSHB 3(STA) was reported out of the House
State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 05 DOL memo-constitutionality of HB 3.pdf |
HSTA 2/1/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 3 |
| 06 HB 3 - 26 States with Length of Authorized Stay Requirement.pdf |
HSTA 2/1/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 3 |
| 07 Lynn Amendment E.3 to HB 3.pdf |
HSTA 2/1/2011 8:00:00 AM |
HB 3 |
| 01 HJR 13 Version A.pdf |
HSTA 2/1/2011 8:00:00 AM |
|
| 02 HJR 13 Sponsor Statement.pdf |
HSTA 2/1/2011 8:00:00 AM |