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.