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Tenison v. State (12/28/2001) ap-1780
Tenison v. State (12/28/2001) ap-1780
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JULIA LOUISE TENISON, )
) Court of Appeals No. A-7583
Appellant, ) Trial Court No. 3PA-00-T1036256
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1780 December 28, 2001]
)
Appeal from the District Court, Third Judicial
District, Palmer, David L. Zwink, Magistrate.
Appearances: Julia Louise Tenison, in propria
persona, Palmer, for Appellant. Rachel K. Gernat, Assistant
District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Since 1998, Alaska law AS 28.15.061(b) has required
all persons applying for a driver's license to supply their social
security number (if they have one). In October 1998, Julia Louise
Tenison's driver's license expired. She applied for renewal of the
license but, for religious reasons, she refused to disclose her
social security number. Because of this, the Division of Motor
Vehicles did not renew her license.
Rather than challenge the DMV's action in a lawsuit or in
an administrative appeal, Tenison simply drove without a license.
Several months later, a state trooper stopped Tenison for an
equipment violation. During this traffic stop, the trooper
discovered that Tenison's license had not been renewed, and Tenison
was ultimately convicted of driving with an expired license,
AS 28.15.011(b).
Tenison now appeals this conviction. She argues that it
is unconstitutional for the State of Alaska to require driver's
license applicants to divulge their social security number,
especially when a person has religious objections to doing so.
But even if Tenison is correct i.e., even if we assume
that the DMV should have renewed Tenison's driver's license despite
her refusal to disclose her social security number Tenison still
had no right to drive without a license. She was obliged to attack
the DMV's action directly, by pursuing an administrative appeal or
by filing a lawsuit against the State. Tenison had no right to
drive for several months without a license and then, after she was
caught, defend the criminal charge by challenging the legality of
the social security number requirement. We therefore conclude that
Tenison's attacks on AS 28.15.061(b) are moot and that Tenison's
conviction must be affirmed.
The amendment to AS 28.15.061(b), requiring all applicants
for driver's licenses to supply their social security number
In August 1996, the federal government enacted the
Personal Responsibility and Work Opportunity Reconciliation Act
(Public Law 104-193). One of the aims of this legislation was to
reduce welfare payments by improving the collection of child
support. In order to make it easier to track down parents who were
delinquent in their child support obligations, Section 317 of the
Act required each state to amend its laws so that applicants for any
"professional license, commercial driver's license, occupational
license, or marriage license" had to furnish their social security
number. One year later, in the Balanced Budget Act of 1997,
Congress amended this provision by deleting the word "commercial"
thus expanding the social security number requirement to include
all applications for driver's licenses. [Fn. 1]
(The federal government has no authority to directly order
the states to change their licensing laws, so Congress used an
economic incentive: states lose a substantial portion of their
federal funding for various welfare programs if they do not require
all license applicants to supply their social security number.)
In 1998, the Alaska Legislature responded to the federal
mandate by enacting SLA 1998, chapter 132, a session law that
amended several statutes to make them conform to the guidelines
contained in the Personal Responsibility and Work Opportunity
Reconciliation Act. Section 51 of this session law amended
AS 28.15.061(b) to require all applicants for driver's licenses to
supply their social security number. The legislature openly
acknowledged that they were responding to economic pressure exerted
by the federal government. In section 1 of the session law, the
legislature stated:
Purpose; Findings. The primary purpose of
this Act is to amend the Alaska Statutes to
comply with the mandates of the federal
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 and other federal
law to ensure continued federal financial
participation [in] Alaska's child support
enforcement, public assistance, and
unemployment programs. The legislature finds
that the federal requirements are unreasonable
and constitutionally questionable, and the
statutory changes that must be made to meet the
federal requirements may do little to improve
[the] collection of child support. These
statutory changes are being made only under
duress from the federal government.
In perhaps a further sign of the legislature's unease, the
legislature also declared that the social security number
requirement would expire in three years. [Fn. 2] But in the 2001
legislative session (i.e., at the end of the appointed three years),
the legislature re-enacted the requirement. [Fn. 3] It is now a
permanent part of the statute. See AS 28.15.061(b)(4).
Procedural history of Tenison's case
As explained above, Tenison's driver's license expired in
October 1998. She sought to renew the license, but the Division of
Motor Vehicles rejected her renewal application because she refused,
on religious grounds, to supply her social security number. Even
though her renewal application had been rejected, Tenison continued
to drive. About six months later, she was caught and cited for
driving with an expired license.
Tenison asked the district court to dismiss this charge.
She argued that it was unconstitutional for the DMV to require her
to supply her social security number. Tenison claimed that this
requirement violated the free exercise of her religious beliefs,
that it violated her right to privacy and her right to travel, and
that it denied her the equal protection of the laws (because the
requirement, as originally enacted, applied only to people who
sought to renew their licenses during the three-year period from
1998 to 2001). Tenison also argued that the social security number
requirement violated federal law governing the permitted uses of
social security numbers.
The district court rejected all of these arguments and
upheld the charge of driving with an expired license. Subsequently,
Tenison was convicted of this charge. She now appeals her
conviction, again arguing that it was unlawful for the DMV to
require her to supply her social security number when she applied
to renew her driver's license.
A person is not entitled to engage in a licensed activity
without the proper license and then, when they are caught,
defend by arguing that their license application should have been
granted
On appeal, Tenison argues various legal theories why the
DMV should have renewed her driver's license even though she
declined to supply her social security number. Generally speaking,
courts have not been receptive to the constitutional and statutory
arguments that Tenison advances here. [Fn. 4] However, there is
an underlying issue that we must resolve before we can reach the
merits of Tenison's various attacks on the social security number
requirement: Even if Tenison is correct that the DMV should have
renewed her driver's license, does the DMV's wrongful refusal to
renew her license constitute a defense to the charge of driving with
an expired license?
The answer is no. As a general rule, when a person is
charged with engaging in a licensed activity without the proper
license, it is no defense that the government wrongfully refused to
grant the person's earlier license application. Even when the
person can show that their application should have been granted,
they are not free to break the law by engaging in the licensed
activity without the necessary license. Rather, the law requires
such a person to appeal the licensing agency's action or to initiate
a lawsuit to make the agency issue the requested license.
This rule has been repeatedly applied to prosecutions for
driving without a valid license or for driving after one's license
has been suspended or revoked. [Fn. 5] And the same rule applies
when a defendant is prosecuted for failing to obtain some other type
of license. [Fn. 6] The general principle underlying this rule of
law was explained by the Maine Supreme Court in State v. Higgins,
338 A.2d 159, 162 (Me. 1975):
[The] particular limitations upon
collateral attack as a method of raising
constitutional issues are ... well recognized.
These limitations reflect a public policy
judgment that "respect for law" is a value of
our society of the highest priority and must be
held to overbalance a citizen's interest [in]
vindicat[ing] rights, even if constitutionally
rooted, by a collateral attack initiated
[after] the citizen's resort to "self-help" ...
.
This court recently applied an analogous principle of law
in Jacko v. State, 981 P.2d 1075 (Alaska App. 1999). The defendant
in Jacko was charged with violating a domestic violence restraining
order. Jacko defended by asserting correctly that the court
which issued the restraining order had acted illegally because the
petitioner had failed to allege sufficient legal grounds to justify
issuing the order. Although we acknowledged that the restraining
order should not have been issued in the first place, we nonetheless
held that Jacko was properly convicted of violating the order. We
stated, "Even though a court's restraining order or injunction may
be factually unjustified (even obviously factually unjustified, as
was the case here), the persons subject to that order must
nevertheless obey it until the order is vacated or reversed through
process of law." [Fn. 7]
Thus, when a person is wrongly denied or deprived of a
license, the person normally must pursue civil remedies to obtain
or regain the license, instead of engaging in the regulated activity
without a proper license. There is a recognized exception to this
rule for license or permit laws that are unconstitutional on their
face generally speaking, laws that regulate expressive activity
or limit the use of public property, and which establish licensing
criteria so vague as to grant unfettered discretion to the licensing
agency, thus unlawfully abridging the First Amendment freedoms of
speech and/or assembly. [Fn. 8] However, the Alaska statute
requiring driver's license applicants to supply their social
security number is not facially unconstitutional.
Tenison does not dispute the State of Alaska's authority
to regulate the operation of motor vehicles by requiring all drivers
to be licensed, nor does she assert that it is unreasonable for the
State to require all applicants for a driver's license to furnish
identifying information. Tenison's argument is that the State can
not require a particular type of identifying information: the
applicant's social security number.
But this requirement appears reasonable on its face. Two
people may have the same name and, conceivably, the same date of
birth, yet their social security numbers will uniquely identify them
from among all license applicants. This unique identifier advances
several valid interests of the state for example, to make sure
that no person obtains more than one driver's license, to identify
drivers whose licenses should not be renewed until they have
satisfied unpaid fines, fees, or insurance requirements, and to
identify drivers whose licenses in other states have been suspended
or revoked because of misconduct.
Tenison has ably raised several potential legal objections
to the social security number requirement, but these objections are
no more than debatable. The requirement does not, on its face,
violate Tenison's constitutional rights. In particular, see
Employment Division, Department of Human Resources v. Smith, 494
U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), holding that the
portion of the First Amendment guaranteeing the free exercise of
religion does not excuse people from complying with a "valid and
neutral law of general applicability [even though the law] ...
prescribes ... conduct that [their] religion [forbids]." [Fn. 9]
Conclusion
For the reasons explained here, we hold that even if
Tenison is correct in asserting that the DMV could not lawfully
require her to supply her social security number when she applied
to renew her driver's license, this is not a defense to the charge
of driving with an expired license. Tenison had no right to
continue to operate a motor vehicle until she was apprehended and
then make a belated attack on the DMV's refusal to renew her
license. No matter how strongly she believed that the social
security number requirement abridged her freedom of religion or
violated other constitutional rights, Tenison was not at liberty to
ignore the law and drive with an expired license. Rather, she was
obliged to challenge the DMV's action by pursuing an administrative
appeal or a civil lawsuit.
Tenison's conviction for driving with an expired license
is AFFIRMED.
FOOTNOTES
Footnote 1:
As enacted by Section 317 of the Personal Responsibility and
Work Opportunity Reconciliation Act, and as amended by Section 5536
of the Balanced Budget Act of 1997 (Public Law 105-33), 42 U.S.C.
sec. 666(a)(13) provides:
RECORDING OF SOCIAL SECURITY NUMBERS IN CERTAIN FAMILY
MATTERS. Procedures requiring that the social security number of
(A) any applicant for a professional license,
driver's license, occupational license, recreational license, or
marriage license be recorded on the application;
(B) any individual who is subject to a divorce
decree, support order, or paternity determination or acknowledgment
be placed in the records relating to the matter; and
(C) any individual who has died be placed in the
records relating to the death and be recorded on the death
certificate.
For purposes of subparagraph (A), if a State allows the use of
a number other than the social security number to be used on the
face of the document while the social security number is kept on
file at the agency, the State shall so advise any applicants.
Footnote 2:
See SLA 1998, ch. 132, sec. 54.
Footnote 3:
See SLA 2001, ch. 40, sec. 1.
Footnote 4:
See Stoianoff v. New York Comm'r of Motor Vehicles, 107
F.Supp.2d 439, 447-450 (S.D. N.Y. 2000), aff'd 12 Fed.Appx. 33 (2nd
Cir. 2001) (unpublished), cert. denied 122 S.Ct. 352 (2001); Miller
v. Reed, 176 F.3d 1202, 1205-08 (9th Cir. 1999); McDonald v.
Department of Public Safety, 756 So.2d 880, 884-87 (Ala. Civ. App.
1999); State v. Loudon, 857 S.W.2d 878, 880-83 (Tenn. App. 1993);
State v. Davis, 745 S.W.2d 249, 252 (Mo. App. 1988).
Footnote 5:
See State v. Cole, 376 S.E.2d 618, 622-23 (W.Va. 1988); State
v. Bell, 357 S.E.2d 596, 598 (Ga. App. 1987); State v. Higgins, 338
A.2d 159, 159-165 (Me. 1975); Abbot v. District of Columbia, 154
A.2d 362, 363 (D.C. App. 1959); Franklin v. District of Columbia,
248 A.2d 677, 679 (D.C. App. 1968).
Footnote 6:
See Poulos v. New Hampshire, 345 U.S. 395, 409; 73 S.Ct. 760,
768-69; 97 L.Ed. 1105 (1953) (license to conduct religious services
in a public park); Turnbow v. State, 265 S.E.2d 832, 833 (Ga. App.
1980) (license to sell malt beverages); State ex rel. Indiana Board
of Medical Registration & Examination v. Frasure, 98 N.E.2d 365,
366-67 (Ind. 1951) (license to practice medicine); State v. Nagle,
91 A.2d 397, 399-403 (Me. 1952) (license to haul goods by truck
commercially); State v. Stevens, 99 A. 723, 725 (N.H. 1916) (license
to sell lightning rods).
In general, see M.C. Dransfield, Annotation: "Right of person
wrongfully refused license under proper application therefor to do
act for which license is required", 30 A.L.R.2d 1006 (1953) and 51
Am.Jur.2d 110, "Licenses and Permits", sec. 106.
Footnote 7:
Id. at 1077.
Footnote 8:
See Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51; 89 S.Ct.
935, 938-39; 22 L.Ed.2d 162 (1969); Collingswood v. Ringgold, 331
A.2d 262, 270 (N.J. 1975) (recognizing the exception, but concluding
that the challenged ordinance was not unconstitutional on its face);
Oakwood v. Gummer, 311 N.E.2d 517, 520-22 (Ohio 1974); Dulaney v.
Municipal Court of San Francisco, 520 P.2d 1, 4 (Cal. 1974); Burton
v. Municipal Court of Los Angeles, 441 P.2d 281, 283-84 (Cal. 1968).
Footnote 9:
Id., 494 U.S. at 879, 110 S.Ct. at 1600.
