Fahy v. NH DOS Commissioner, et al.

2006 DNH 038

• Court: District Court, D. New Hampshire
• Decided: March 29, 2006
• Docket: 05-CV-097-SM
• Status: Published

Opinion

Fahy v . NH DOS Commissioner, et a l . 05-CV-097-SM 03/29/06 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sr. M . Regina Fahy, RSM; Haliyamtu Theo Amani; Sarra Ali; Eva Castillo-Turgeon; and Annagreta Swanson, Plaintiffs

v. Civil N o . 05-cv-97-SM Opinion N o . 2006 DNH 038 Commissioner, New Hampshire Department of Safety,

O R D E R

Plaintiffs are New Hampshire residents who are lawfully in

this country, but are not citizens of the United States. They

bring this action seeking a judicial declaration that certain

written and unwritten policies of the New Hampshire Department of

Safety, Division of Motor Vehicles (the “DMV”), discriminate

against non-citizens in violation of their constitutionally

protected rights.

Pending before the court are plaintiffs’ motion for

preliminary and permanent injunctive relief, defendant’s motion

for partial dismissal, and the parties’ cross-motions for summary

judgment. Standard of Review

To be entitled to permanent injunctive relief, plaintiffs

must demonstrate that: (1) they prevail on the merits of their

claims; (2) they would suffer irreparable injury in the absence

of injunctive relief; (3) the harm to plaintiffs in the absence

of injunctive relief outweighs any harm to the State if an

injunction issues; and (4) the public interest would not be

adversely affected by the issuance of an injunction. See A.W.

Chesterton C o . v . Chesterton, 128 F.3d 1 , 5 (1st Cir. 1997).

Additionally, because plaintiffs have moved for summary

judgment, they must also demonstrate that the record reveals “no

genuine issue as to any material fact and . . . [that they are]

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). In this context, “a fact is ‘material’ if it potentially

affects the outcome of the suit and a dispute over it is

‘genuine’ if the parties’ positions on the issue are supported by

conflicting evidence.” Intern’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st

Cir. 1996) (citations omitted).

2 Factual Background

I. The Plaintiffs.

Plaintiff Sister M . Regina Fahy (“Fahy”) is a citizen of the

Republic of Ireland. She resides in Manchester, New Hampshire.

She is a legal permanent resident and has lived in New Hampshire

continuously since 1975. She has had a New Hampshire driver’s

license since 1980. Until April of 2004, Sister Fahy routinely

renewed her license at the Manchester DMV substation. When she

went to renew her license in April of 2004, she was told she

would have to go to the DMV’s main office in Concord because she

is a non-citizen. Sister Fahy went to Concord the next day with

her then-current driver’s license and her social security card,

but says she was told by the person at the non-citizens’ window

that the documentation she provided was not sufficient.

Eventually, on her third attempt to renew her license,

Sister Fahy was successful. She paid a $50.00 fee and was given

a yellow, handwritten, 45-day temporary permit with no picture.

Sister Fahy says she found both the process and the temporary

permit to be personally embarrassing and humiliating. As a

result, she chose not to drive until she received her standard,

3 laminated license in the mail. When she did receive her standard

driver’s license, she discovered that rather than being valid for

the statutorily prescribed five-year term, it expired in two

years and nine months. The State says the expiration of Sister

Fahy’s license coincides with the expiration date on the

immigration documentation she provided to DMV employees - that

i s , the license period was coextensive with her apparent

authorized stay in this country. Sister Fahy’s current driver’s

license does not have a blue bar beneath her picture.1

Plaintiff Haliyamtu Theo Amani (“Amani”) is a citizen of the

Democratic Republic of the Congo and, like Sister Fahy, resides

in Manchester. Amani arrived in New Hampshire in 1990 and was

granted refugee status in 1997. He obtained his first New

Hampshire driver’s license at the Manchester DMV substation and,

until April of 2002, he was able to renew it there. When Amani

went to Manchester in April of 2002 to renew again, he saw a sign

directing all non-citizens to Concord. That same day, he went to

1 A blue bar appears beneath the photo of any driver who has been issued a duplicate license. Several plaintiffs, however, have a blue bar beneath their photos, even though they have not been issued a duplicate license. Those plaintiffs are concerned that the blue bar somehow indicates their immigration status.

4 Concord and was directed to a line for non-citizens. Upon

reaching the window, he discovered that in addition to being

required to prove his identity and citizenship status, he was

also required to show proof of residency. Amani returned to

Concord another day with the appropriate documents and was given

a yellow, handwritten, temporary driver’s permit with no picture.

When he asked why he had been issued a temporary permit, he says

he was told that the DMV had to investigate all non-citizens.

Since April of 2002, Amani has been required to renew his

driver’s license every year. According to the State, this is

because Amani’s visa indicates that he was admitted to this

country as a refugee, for an indefinite period of time. And, at

least until recently, the State required non-citizens with

“indefinite” status to renew their licenses annually.2 Each time

he has renewed his license, Amani says he has been required to

present documents proving his identity, immigration status, and

New Hampshire residency. Each time, he says, he has received a

2 That practice has, however, stopped. Now, the State issues a five-year driver’s license to any non-citizen resident with “indefinite” status. See Exh. C-1 to defendant’s memorandum (document n o . 4 0 ) , “Clarification of the Pilot Program” (April 2 7 , 2005).

5 yellow 45-day temporary permit and only later received a standard

driver’s license, albeit one that expired in ten and one-half

months.

Although he has never requested a duplicate license, Amani’s

license bears a blue bar below his photograph. The State

explains that this is because with each annual renewal of his

license, Amani was charged only $ 1 0 , rather than the typical $50

renewal fee. In essence, says the State, his renewal was

processed (and he was charged) as if it were for a duplicate

license. The benefit to Amani is plain: he was charged a far

lower fee. But, because his application was routinely treated as

one for a duplicate license, the system employed by the DMV

produced it with the blue bar that is displayed on all duplicate

licenses.

Plaintiff Sara Ali (“Ali”) is a citizen of Sudan and was

granted asylum in the United States in 2002. She, too, resides

in Manchester. Ali first attempted to obtain an original New

Hampshire driver’s license in January of 2003. DMV personnel

told Ali that in order to prove residency, she would have to

6 produce utility bills in her name, a social security number, a

letter from her employer, and a car registered in her name. She

apparently produced the requisite documentation and, after two

unsuccessful attempts, Ali passed the practical driving test on

March 1 9 , 2003. She was given a yellow, handwritten, 45-day

temporary permit with no picture.

Eventually, Ali’s standard, laminated license came in the

mail. But, that license was scheduled to expire less than nine

months after it was issued. And, she says that when she renewed

that license, the new one expired less than four months after it

was issued. Her current license is valid for a period of one

year. Each time Ali has renewed her driver’s license, she has

been issued a yellow 45-day temporary driver’s permit. Although

she has never requested a duplicate license, her current license

(as well as the previous one) bears the blue bar beneath her

photograph.

According to the State, Ali’s initial licenses were issued

with a one-year expiration date because the documentation she

presented in support of each renewal application was a work

7 authorization card, which was valid for only one year. Her

driver’s license expiration date was, therefore, linked to that

date. But, when she eventually presented documentation that she

had been granted indefinite asylum status, the State says her

driver’s license expiration date was extended to the customary

five years from the date on which she originally paid the full

$50 licensing fee. Because a new license had to be issued

(including, among other things, a new expiration date), she was

charged the $10 “duplicate license” fee and, accordingly, her

license bears the blue bar at the bottom.

Plaintiff Eva Castillo-Turgeon (“Castillo-Turgeon”) is a

citizen of Venezuela and is a legal permanent resident who has

lived in the United States for several years, most recently

returning with her U.S.-born husband and children in 1999. She

has resided in New Hampshire since 2000 and currently lives in

Manchester. Castillo-Turgeon applied for her original driver’s

license at the Manchester DMV in May of 2001 and was issued a

license that expired in November of 2001 (when her work permit

expired). When she returned to Manchester to renew her license

8 in November of 2001, Castillo-Turgeon was told she would have to

go to Concord.

In Concord, Castillo-Turgeon was directed to a line for non-

citizens and was able to renew without being required to show

proof of identity, immigration status, or residency. She was

issued a license that expired in four years. Although she has

never requested a duplicate license, her license bears the blue

bar beneath her photograph. The State says that, as was the case

with other plaintiffs, when Castillo-Turgeon returned to the DMV

to renew her license, she was credited with having paid the full

$50 license fee in May of 2001, she was issued a new license that

expired five years from that date (i.e., May, 2006), and she was

charged only the $10 “duplicate license” fee (which, again,

explains the blue bar on her license).

Plaintiff Annagretta Swanson (“Swanson”) is a citizen of

Germany and is a legal permanent resident who has lived in the

United States continuously since 1965. She currently lives in

Peterborough, New Hampshire. Swanson has had a New Hampshire

driver’s license since 1973. In November of 2001, she attempted

9 to renew her license at the Milford DMV substation, where she was

told that she would have to go to Concord. That day, Swanson

drove to Concord and was directed to the non-citizen line where,

after providing the appropriate documents, she was given a yellow

45-day temporary permit. Swanson says she asked the DMV employee

why she did not receive the standard New Hampshire driver’s

license and claims that he told her, in a voice loud enough to be

overheard by many other people, that she was “under

investigation” - a remark that caused Swanson to feel personally

embarrassed and humiliated.

Swanson received her standard, laminated driver’s license in

the mail. It expired on January 8 , 2006, and, since she paid the

full licensing fee, her license did not have a blue bar beneath

her picture.

II. Challenged State Practices.

Plaintiffs challenge both written and unwritten practices of

the DMV that they claim unconstitutionally discriminate against

them as non-citizens. Specifically, they seek temporary and

10 permanent injunctive relief against the State, prohibiting it

from enforcing the following policies:

1. The regulatory requirement set forth in Saf-C 1002.06(b) which provides that “all non- United States citizens applying for an original or renewal driver license shall appear only at the Division of Motor Vehicles [in] Concord, N.H.”

2. The requirement that all non-citizen applicants for an original driver’s license take a road skills test, even if they are surrendering a valid driver’s license from another state, while similarly situated citizens of the United States need only take such a test under limited circumstances. Saf-C 1003.04(a)(3).

3. The requirement that, if a non-citizen does not hold a driver’s license from his or her home country, he or she must provide documentation from the home country that demonstrates either: (a) the applicant has never held a driver’s license; or (b) that the applicant has held a driver’s license in the United States. Saf-C 1003.04(c).

4. The practice of issuing a 45-day paper driving permit to non-citizen applicants for original driver’s licenses, when citizens receive a 6-month laminated photo-I.D. temporary license. Saf-C 1003.04(e)

5. An allegedly unwritten policy of requiring non-citizens to renew their driver’s licenses more frequently than the statutorily required five (5) years.

11 6. An allegedly unwritten policy imposing on non-citizens more onerous requirements regarding proof of N.H. residency, even when they are merely renewing an existing N.H. driver’s license.

III. The State Regulations.

The New Hampshire Department of Safety, Division of Motor

Vehicles, has enacted administrative rules which include

licensing requirements for non-United States citizens (“non-

citizens”). In September of 2001, the DMV began requiring non-

citizens to go to Concord to obtain and renew their driver’s

licenses. And, as part of that program, it assigned two document

examiners, each of whom has foreign language expertise and

additional training in document identification, to the non-

citizen post in Concord. The DMV rules pertaining to non-

citizens were formalized in 2004.

One of the challenged administrative regulations - Saf-C

1002.06(b) - requires all non-citizens applying for either an

original or a renewal driver’s license to appear at the Concord

DMV office. And, Saf-C 1003.04(a) requires non-citizens applying

for an original driver’s license to complete a road skills test,

even if they hold (and are surrendering) a valid driver’s license

12 from another state. Citizens of the United States in a similar

position need not complete a road skills test.

If an applicant presents a driver’s license from his or her

home country, Saf-C 1003.04(b) requires the Director to assess

whether the license is genuine, whether it was actually issued to

the applicant, and whether it is under suspension or revocation.

If an applicant does not possess a license from his or her home

country, Saf-C 1003.04(c) requires him or her to provide

verification from the home country that he or she (1) has never

held a driver’s license; or (2) has held a driver’s license in

the United States - documentation that plaintiffs say is

virtually impossible to obtain since, presumably, few countries

actually keep such records relating to citizens living abroad.

The administrative regulations further provide that a 45-day

temporary permit shall be issued to non-citizen applicants upon

receipt of the necessary forms and materials. Saf-C 1003.04(e).

And, Saf-C 1003.04(g) provides that driver’s licenses shall be

valid for up to 5 years or until the date the applicant’s visa,

13 I-20 form, DS-2019 form, or employment status expires, whichever

occurs first.

In January of 2005, the DMV began a “pilot program” which

permits any permanent resident, refugee, or asylee with

indefinite status, who has completed one original or one renewal

application in Concord, to renew a driver’s license at any DMV

substation. That pilot program was clarified or supplemented on

April 2 7 , 2005, when the Supervisor of the Bureau of Driver

Licensing issued a memo to all DMV employees. Attachment 1 to

Haynes Aff., Def.’s Ex. F.3

Currently, then, the DMV administrative regulations, as

amended and supplemented by the provisions of the “pilot

program,” provide that:

1. Any permanent resident, refugee, or asylee seeking to renew a driver’s license that was originally issued before September 1 1 , 2001,

3 The State has committed to permanently enforce the provisions of the “pilot program” and, for that reason, says it should not be regarded as either a temporary or experimental program. See Exh. O to defendant’s memorandum, testimony of Virginia Beecher before the Joint Legislative Committee on Administrative Rules. See also Exh. X to defendant’s memorandum (proposed amendments to DMV administrative regulations).

14 must do so at the Driver Licensing Office in Concord. Any subsequent renewals, however, may be done at any Driver Licensing office.

2. Any permanent resident, refugee, or asylee who was issued an original or renewal license after September 1 1 , 2001, may renew that license at any Driver Licensing Office; there is no longer any requirement that the applicant appear exclusively in Concord.

3. There is no longer any requirement that non- citizen applicants for renewal licenses prove their residency, unless there is some reason to believe that there has been a change in residence.

4. Non-citizens who apply for renewal licenses are no longer issued temporary 45-day licenses, though those temporary licenses are still issued to non-citizen applicants seeking an original driver’s license.

5. The expiration date for all non-citizens’ driver’s licenses are linked to the expiration date of the legal status documents they provide when they file their application for an original or renewal license. For licenses that must bear an expiration date sooner than the typical five years, recent legislation authorizes the DMV to pro-rate the $50 statutory fee.

6. If the applicant has an “indefinite” status, he or she will receive a 5-year driver’s license.

7. Non-citizens who are in the United States on a temporary basis must continue to apply for original and renewal driver’s licenses in Concord.

15 Among other things, plaintiffs allege that the State’s

classification by citizenship violates their rights to equal

protection of the laws. They request preliminary and permanent

injunctive relief barring the enforcement of Saf-C 1002.06,

1003.04, and the uncodified policies they say are being enforced

by the DMV. They also seek attorneys’ fees, costs, and expenses

pursuant to 42 U.S.C. §1988.

The State says plaintiffs’ equal protection rights have not

been violated because: (1) plaintiffs are not similarly situated

in all relevant respects to all other driver’s license

applicants; (2) even if they are similarly situated, recent

congressional enactment of The Real ID Act, Pub.L. 109-13 Div. B ,

Title I I , §§ 201-207 (May 1 1 , 2005)(“Improved Security for

Drivers’ Licenses and Personal Identification Cards”), requires

that any alleged equal protection violation be analyzed under the

lenient “rational basis” standard of review - a test which the

State says its regulations easily pass; and (3) even if the more

rigorous “strict scrutiny” test applies, the challenged

regulations and policies survive that standard as well.

16 Discussion

I. Plaintiffs’ Standing.

As an initial matter, the State asserts that plaintiffs lack

standing to assert the claims advanced in their complaint. The

Court of Appeals for the First Circuit has observed that

Standing involves both constitutional imperatives and prudential considerations. An inquiry into standing must be based on the facts as they existed when the action was commenced.

To satisfy Article III’s “personal stake” requirement vis-a-vis a statutory challenge, the plaintiff bears the burden of demonstrating that (i) she has suffered an actual or threatened injury in fact, which is (ii) fairly traceable to the statute, and (iii) can be redressed by a favorable decision. Allegations of abstract injury are insufficient to make out an injury in fact. Instead, the plaintiff “must show that he has sustained or is immediately in danger of sustaining some direct injury.”

Ramirez v . Sanchez Ramos, 438 F.3d 9 2 , 97 (1st Cir. 2006)

(citations omitted). The court went on to note that, “[i]n

general - there are exceptions, but we need not discuss them

here - prudential concerns require a plaintiff to show that she

is seeking to protect her own legal rights (rather than those of

a third party), that her complaint does not merely represent a

17 generalized grievance, and that the complaint falls within the

zone of interests protected by the law invoked.” Id. at 9 8 .

In this case, none of the plaintiffs alleges that he or she

was required take a road skills test despite the fact that he or

she surrendered a valid driver’s license from another state. See

Saf-C 1003.04(a)(3). Nor does any plaintiff allege that he or

she was required to provide documentation from his or her home

country attesting to the fact that either: (1) the applicant

never held a driver’s license in that country; or (2) the

applicant has held a driver’s license issued by another state.

See Saf-C 1003.04(c). Consequently, none of the plaintiffs has

standing to challenge those two administrative rules.4

As to plaintiffs’ remaining claims, however, it is clear

that they do have standing. For example, several plaintiffs have

4 As an aside, the court notes that the record suggests that the State is not enforcing the former of those administrative requirements against non-citizens. That is to say, those who surrender a driver’s license from another state are not required to take a road skills test. See, e.g., Defendant’s memorandum in support of summary judgment (document n o . 40) at 5 (“Non-U.S. citizens that present a valid driver license from out of state are treated the same as citizens in regards to any requirement that a road test be taken.”) (citations omitted).

18 testified in affidavits that they were required to drive to the

DMV main office in Concord to process license renewals, as

required by Saf-C 1002.06(b). Similarly, Sister Fahy and Amani

both testified that, when they sought to renew their expired New

Hampshire driver’s licenses, they were issued 45-day paper

driving permits. See Saf-C 1003.04(e). And, Ali testified that

when she applied for an original driver’s license, she too was

initially given a 45-day paper driving permit. Finally,

plaintiffs have adequately alleged that they were required to

renew their driver’s licenses more frequently than the five-year

statutory period, and that they were subjected to onerous

requirements regarding proof of residency, even when they were

simply renewing an expired New Hampshire driver’s license. As to

those claims, then, plaintiffs plainly have standing.

II. Mootness of Plaintiff’s Claims.

Next, the State asserts that, in light of the changes made

to licensing procedures applicable to non-citizens, plaintiffs’

claims have been rendered moot. Plaintiffs, on the other hand,

point out that, while the State’s decision to voluntarily stop

its arguably unconstitutional practices is certainly a factor to

19 be considered, it does not, standing alone, automatically render

plaintiffs’ claim moot. The court agrees. As the Supreme Court

has noted:

It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.

City of Mesquite v . Aladdin’s Castle, Inc., 455 U.S. 283, 289

(1982). In support of their view that the court should consider

their claims on the merits and issue appropriate injunctive

relief, plaintiffs point out that the recently-adopted policies

of the State have not been uniformly adopted and/or applied at

the various DMV substations.

[Plaintiffs’] experiences [in attempting to renew their driver’s license] demonstrate exactly the opposite of what the Commissioner contends:

Sara Ali: Ali renewed her license in April, 2005, in Manchester. She received a license good for only three years, not the five required by RSA 263:10 for adult citizens.

Theo Amani: Amani renewed his license in April, 2005, in Manchester. He was once again required to produce

20 his immigration papers, despite his protest that they were already in the DMV file.

Annagreta Swanson: Swanson tried to renew her license on November 1 5 , 2005. Because her alien registration card was due to expire in January, 2006, the DMV refused to issue a renewal license valid for any longer than two months. This despite the Commissioner’s assertion that, under the pilot program, aliens of indefinite duration status would be issued five-year licenses. Swanson was finally issued a five-year renewal license only after she renewed her “green card.”

Eva Castillo-Turgeon: Castillo-Turgeon renewed her license on November 4 , 2005. The DMV personnel demanded to see her immigration documents.

Plaintiffs’ memorandum in opposition to summary judgment

(document n o . 43) at 22 (citations omitted).

Given the apparent inconsistency with which DMV personnel have been applying the revised licensing procedures applicable to non-citizens, the court concludes that it is appropriate and would be beneficial to address plaintiffs’ claims on the merits and clarify the respective constitutional rights and obligations of the parties.

III. Equal Protection.

The Equal Protection Clause of the Fourteenth Amendment

provides that “[no] State [shall] deprive any person of life,

21 liberty, or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.”

The Supreme Court has interpreted this clause to require that

“all persons similarly circumstanced shall be treated alike.”

Plyler v . Doe, 457 U.S. 2 0 2 , 216 (1982) (quoting F.S. Royster

Guano C o . v . Virginia, 253 U.S. 4 1 2 , 415 (1920)).

It is well settled that aliens, even those whose presence in

this country is unlawful, are “persons” entitled to equal

protection and due process of law under the Fifth and Fourteenth

Amendments. Plyler, 457 U.S. at 202. The Plyler Court ruled

that a Texas law restricting enrollment in public school to

children of U.S. citizenship violated the equal protection rights

of undocumented school-aged children. In so holding, the Court

noted that:

The term “person,” used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled t o . He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws.

22 Plyler, 457 U.S. at 213 (quoting Wong Wing v . United States, 163

U.S. 2 2 8 , 242 (1896) (Field, J., concurring)).

While acknowledging that plaintiffs are entitled to the

protections afforded by the Due Process Clause of the Fourteenth

Amendment, the State argues that non-citizens are not similarly

situated to U.S. citizens when it comes to driver’s licenses.

Among other things, the State says this is because non-citizens

“have a plethora of different documents to demonstrate their

status that are different than what must be processed for a

citizen.” Defendant’s memorandum (document n o . 11) at 1 7 . The

State also points to communication and accommodation barriers

which contribute to substantial differences in processing license

applications filed by non-citizens (though plainly communication

and accommodation barriers are not issues uniquely presented by

non-citizens; some United States citizens from Puerto Rico or

citizens who were recently naturalized, for example, might have

difficulty communicating in English).

In analyzing an equal protection claim, the Court must

“determine the proper standard under which to review the

23 classification and then analyze the purpose of the legislation to

determine whether it satisfies the standard.” Richard v . Hinson,

70 F.3d 415, 417 (5th Cir. 1995) (citing United States R.

Retirement Bd. v . Fritz, 449 U.S. 166, 174 (1980)). The two

traditional tests used are “strict scrutiny” and “rational

basis.”

Typically, if a legislative classification violates a

fundamental right or has the effect of impairing members of a

suspect class, then the court must apply strict scrutiny. Id.

(citing San Antonio Indep. Sch. Dist. v . Rodriguez, 411 U.S. 1

(1973)). For legislation to be held constitutional under the

strict scrutiny test, the government bears the substantial burden

of proving that its classification is both “narrowly tailored”

and designed to further a “compelling governmental interest.”

Johnson v . California, 125 S . C t . 1141, 1146 (2005).

I f , on the other hand, the legislative classification does

not disadvantage a suspect class or violate a fundamental right,

the State need only demonstrate that the legislative

classification “bears a rational relationship to the furtherance

24 of a legitimate governmental purpose.” Gary S . v . Manchester

Sch. Dist., 374 F.3d 1 5 , 22 (1st Cir. 2004) (citing Reagan v .

Taxation with Representation of Washington, 461 U.S. 5 4 0 , 547

(1983)). There is a strong presumption of validity when a

statute is analyzed under rational basis review. As the Supreme

Court has explained:

[R]ational basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness or logic of legislative choices. Nor does it authorize the judiciary to sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines. . . Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Further, a legislature that creates these categories need not actually articulate at any time the purpose or rationale supporting its classification. Instead, a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

Heller v . Doe, 509 U.S. 3 1 2 , 319-320 (1993) (internal quotations

and citations omitted).

Plaintiffs argue that strict scrutiny review must be applied

to all of the challenged DMV regulations and uncodified policies

25 because resident aliens constitute a suspect classification.

They also assert that strict scrutiny must be applied because,

among other things, the challenged DMV rules violate plaintiffs’

fundamental right to equal protection. The State disagrees,

asserting that due to the recent enactment of federal law on the

subject - The Real ID Act - the challenged DMV rules are subject

only to rational basis review. In the alternative, the State

insists that the regulations survive even strict scrutiny review.

At this juncture, it is probably appropriate to note the

scope of the authority possessed by the states to enact laws and

administrative regulations that treat citizens and non-citizens

differently, as contrasted with the broader authority possessed

by Congress in that area. First, the Supreme Court has

consistently recognized the predominant authority of the federal

government to regulate aliens within the United States. Toll v .

Moreno, 458 U.S. 1 , 10 (1982). Congress derives its power from

“the Federal Government’s power to establish a uniform Rule of

Naturalization, U.S. Const., Art. I , § 8 , c l . 4 , its power to

regulate Commerce with foreign Nations, id., c l . 3., and its

broad authority over foreign affairs.” Toll, 458 U.S. at 10

26 (internal quotations and punctuation omitted). And, based on its

broad power over immigration and naturalization, Congress has the

authority to treat aliens differently from citizens. The fact

that Congress chooses to exercise that power does not alone

qualify such disparate treatment as “invidious.” Mathews v .

Diaz, 426 U.S. 6 7 , 78 (1976) (provision of Social Security Act

that grants Medicare benefits to certain resident citizens over

6 5 , but not to aliens over 65 unless they have been permanent

residents of the U.S. for a minimum of five years does not

violate Equal Protection Clause). The Court explained that

“[t]he fact that all persons, aliens and citizens alike, are

protected by the Due Process Clause does not lead to the further

conclusion that all aliens are entitled to enjoy all the

advantages of citizenship o r , indeed, to the conclusion that all

aliens must be placed in a single homogeneous legal

classification.” Id.

With regard to the authority possessed by the states, the

Court has also long recognized substantial limitations on the

authority of the states to make similar classifications. S o , for

example, in Takahashi v . Fish & Game Com’n, 334 U.S. 410 (1948),

27 the Supreme Court declared unconstitutional a California statute

that precluded aliens who were ineligible for U.S. citizenship

from obtaining commercial fishing licenses. California attempted

to defend the statute by arguing that it had “simply followed the

Federal Government’s lead in adopting that classification from

the naturalization laws.” Id. at 4 1 8 ) . The Court rejected that

argument, noting:

The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take away from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.

Takahashi, 334 U.S. at 419 (citation and footnote omitted)

(quoted in Toll, 458 U.S. at 11) (emphasis omitted).

Following Takahashi, the Supreme Court took the equal

protection analysis a step further, establishing the general rule

28 that state “classifications based on alienage, like those based

on nationality or race, are inherently suspect and subject to

close judicial scrutiny.” Graham v . Richardson, 403 U.S. 365,

372 (1971) (Pennsylvania statute denying resident aliens welfare

benefits and Arizona statute denying welfare benefits to resident

aliens living in U.S. less than fifteen years both violate Equal

Protection Clause). The Court explained that “[a]liens as a

class are a prime example of a ‘discrete and insular’ minority

for whom such heightened judicial solicitude is appropriate.”

Id. (citation omitted).

Since Graham, the Court has been consistent in applying

strict scrutiny to state laws creating classifications by

alienage. Soskin v . Reinertson, 353 F.3d 1242, 1250 (10th Cir.

2004). See, e.g., Bernal v . Fainter, 467 U.S. 216, 219-220

(1984) (Texas law requiring U.S. citizenship for state notaries

public subject to strict scrutiny); Examining Bd. v . Flores de

Otero, 426 U.S. 5 7 2 , 601-602 (1976) (same for Puerto Rico law

requiring U.S. citizenship to obtain engineer license); In re

Griffiths, 413 U.S. 7 1 7 , 721 (1973) (same for Connecticut law

requiring U.S. citizenship for membership in State B a r ) ; Sugarman

29 v . Dougall, 413 U.S. 6 3 4 , 642 (1973) (same for New York law

requiring U.S. citizenship for competitive state civil service

positions).

Importantly, however, in De Canas v . Bica, 424 U.S. 351

(1976), the Court upheld a section of the California Labor Code,

which prohibited California employers from knowingly employing

illegal aliens when that employment would adversely affect

resident workers. The Court found that the statute was not

invalid under the Supremacy Clause because Congress had not

“unmistakably ordained” exclusive federal regulation in the field

of employment of illegal aliens; on the contrary, the Court held

that amendments to the Farm Labor Contractor Registration Act

were evidence that “Congress intends that States may, to the

extent consistent with federal law, regulate the employment of

illegal aliens.” Id. at 361. The Court reiterated this

principle in Plyler, holding that when:

[f]aced with an equal protection challenge respecting the treatment of aliens, we agree that the courts must be attentive to congressional policy; the exercise of congressional power might well affect the State’s prerogatives to afford differential treatment to a particular class of aliens. . . . [T]he States do have some authority to act with respect to illegal aliens,

30 at least where such action mirrors federal objectives and furthers a legitimate state goal.

457 U.S. at 225.

Together, these cases “stand for the broad principle that

‘state regulation not congressionally sanctioned that

discriminates against aliens lawfully admitted to the country is

impermissible if it imposes additional burdens not contemplated

by Congress.’” Toll, 458 U.S. at 12-13 (quoting De Canas, 424

U.S. at 358 n . 6 ) . But, on the other hand, state laws enacted

pursuant to congressional authorization - even if those laws

impose unequal burdens on non-citizens - are subject to rational

basis review. See Soskin, 353 F.3d at 1254-55.

IV. The Real I.D. Act.

Here, the State asserts that the DMV regulations and

policies at issue are authorized by Congress and, therefore,

subject to the more relaxed “rational basis” standard of review.

Specifically, the State points to the provisions of the Real ID

Act which, among other things, state that, “[b]eginning 3 years

after the date of the enactment of this division [May 1 1 , 2005],

31 a Federal Agency may not accept, for any official purpose, a

driver’s license or identification card issued by a State to any

person unless the State is meeting the requirements of this

section.” Pub. L . 109-13 Div. B , Title I I , § 202(a)(1). The Act

goes on to provide that:

To meet the requirements of this section, a State shall require, at a minimum, presentation and verification of the following information before issuing a driver’s license or identification card to a person:

(A) A photo identity document, except that a non-photo identity document is acceptable if it includes both the person’s full legal name and date of birth.

(B) Documentation showing the person’s date of birth.

(C) Proof of the person’s social security account number or verification that the person is not eligible for a social security account number.

(D) Documentation showing the person’s name and address of principal residence.

Id. at § 202(c)(1). Additionally, with regard to five categories

of resident aliens, the Real ID Act provides that states may

issue only temporary driver’s licenses or temporary

identification cards. Id. at § 202(c)(2)(C).5

5 The five categories of non-citizens to whom only temporary driver’s licenses or identification cards may issue are: (1) holders of non-immigrant visas; (2) those with pending

32 To comply with the Act, states must also implement the

following procedures:

(A) Before issuing a driver’s license or identification card to a person, the State shall verify, with the issuing agency, the issuance, validity, and completeness of each document required to be presented by the person under paragraph (1) or ( 2 ) .

(B) The State shall not accept any foreign document, other than an official passport, to satisfy a requirement of paragraph (1) or ( 2 ) .

Id. at § 202(c)(3). Finally, and perhaps most significantly for

this litigation, the Act mandates that states establish “an

effective procedure to confirm or verify a renewing applicant’s

information,” id. at § 202(d)(4), and provide “fraudulent

document recognition training programs for appropriate employees

engaged in the issuance of driver’s licenses and identification

cards,” id. at § 202(d)(9).

applications for asylum in the United States; (3) those with an application for temporary protected status in the U.S.; (4) those with approved deferred action status; and (5) those with a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the U.S. Id. at § 202(c)(2)(B)(v)-(ix).

33 In summary, then, the Real ID Act was enacted to ensure that

several states issue photographic identification cards only to

people who are who they claim to b e . That is to say, the Act is

concerned exclusively with preventing fraud in connection with

the acquisition of state-issued identification cards. It was not

enacted to require (or even facilitate) a state’s “investigation”

into whether an applicant i s , for example, wanted on criminal

charges, appears on so-called terror “watch-lists,” or even

whether he or she is qualified to drive. Accordingly, to be

subject to the more lenient “rational basis” standard of review,

the challenged practices of the State must be consistent with

Congressional purpose and must fall within the scope of practices

specifically contemplated by Congress and mandated by the Act

relating to the prevention of identity fraud.

V. The State’s Current Licensing Procedures.

A. Initial Licensing Exclusively in Concord.

As noted above, non-citizens seeking to obtain an original

New Hampshire driver’s license, as well as those seeking to renew

an existing license that was issued prior to September 1 1 , 2001,

must appear at the DMV main office in Concord. Once that license

34 (or renewal license) has issued, however, all subsequent renewals

can be done at the applicant’s local DMV substation.6

The State’s justification for imposing this requirement is

straightforward: in the wake of the September 1 1 , 2001, attacks

on the United States, and given the requirements of the Real ID

Act, the State has a federal mandate, if not a legal obligation,

to establish “an effective procedure to confirm or verify a

renewing applicant’s information,” id. at § 202(d)(4), and to

provide “fraudulent document recognition training programs for

appropriate employees engaged in the issuance of driver’s

licenses and identification cards,” id. at § 202(d)(9). See also

Id. at § 202(c)(3). It is fair to presume that New Hampshire,

and its citizens and residents, want the State’s driver’s license

to be accepted as a reliable form of identification for federal

purposes, such as airline travel, etc. That, in turn, requires

meeting the Real ID Act’s mandates.

6 All driver’s licenses issued prior to September of 2001, were valid for no more than four years and, therefore, they have now expired and, presumably, have already been renewed. Currently, then, only non-citizens applying for an original driver’s license must appear at the DMV main office in Concord; non-citizen license renewals may now be processed at any one of the seventeen local DMV substations.

35 For non-citizens, the documentation submitted in support of

a license application includes passports issued by any one of

nearly 300 countries, as well as a myriad of legal status

documents issued by the Immigration and Naturalization Service.

To ensure that such documents are authentic, the State has hired

two document experts, who are stationed at the DMV main office in

Concord and who have been trained to recognize the numerous

documents that might be presented in support of a non-citizen’s

license application as well as to recognize potentially

fraudulent documents.

Plainly, this system treats non-citizens differently. But,

it is equally plain that the State’s system is entirely

consistent with the requirements and objectives of the Real ID

Act. The requirement that first-time applicants for New

Hampshire driver’s licenses travel to the Concord DMV office i s ,

therefore, subject to “rational basis” review. Moreover, the

State has articulated a rational and reasonable basis for

requiring first-time license applicants to appear in Concord. In

other words, it has carried its burden of proving a “rational

relationship between the disparity of treatment and some

36 legitimate governmental purpose.” Bd. of Trustees v . Garrett,

531 U.S. 356, 367 (2001). See also Kimel v . Florida Bd. of

Regents, 528 U.S. 6 2 , 84 (2000).

The State has a substantial interest in insuring that

driver’s licenses are not obtained through the use of false or

fraudulent documentation. To achieve that goal, the Real ID Act

imposes several fairly onerous requirements on the State to

insure that state-issued photographic identification cards are

not obtained through fraud or issued to persons not lawfully in

the country. The number of different documents that non-citizens

may supply in support of an application for a driver’s license

means that those charged with issuing the licenses must be

specially trained to recognize those documents and determine

their authenticity. The State can fairly determine that the

human and financial resources necessary to place at least one

trained person at each DMV substation to recognize and verify the

authenticity of documents provided by non-citizens in support of

license applications are simply too burdensome, and that it is

more efficient and effective to organize review of non-citizen

documents in a central location.

37 While some of the practices employed by the DMV when

plaintiffs originally filed this suit raise legitimate

constitutional concerns, those practices have been substantially

altered. The current policies and practices employed by the

State relating to the licensing of non-citizens (and re-licensing

of non-citizens whose original licenses were issued prior to

September 1 1 , 2001), exclusively at the main DMV office in

Concord do not violate plaintiffs’ constitutional rights.

Because each plaintiff has already had one original or renewal

license application processed at the main DMV office in Concord,

each may now submit future renewal applications locally - in

fact, four plaintiffs have already submitted renewal applications

at their local DMV substation. Accordingly, plaintiffs are not

entitled to an injunction prohibiting the State from enforcing

the provisions of Saf-C 1002.06(b) (requiring non-citizens to

appear in Concord when they file an application for an original

New Hampshire driver’s license).

B. Temporary Licenses.

Under the DMV’s administrative regulations, once a non-

citizen applicant for an original New Hampshire driver’s license

38 submits an application and statutory fee, and satisfactorily

completes all appropriate testing, the applicant is issued a

temporary, 45-day, paper driving permit. Saf-C 1003.04(e).

Plaintiffs also allege that, pursuant to an unwritten policy of

the DMV, some DMV employees have been issuing temporary driving

permits to non-citizens when they apply to renew an existing, but

expired, New Hampshire driver’s license. The temporary permit is

not laminated, nor does it include a photograph of the licensee.

United States citizens, on the other hand, receive a 6-month

temporary permit that is laminated and includes the licensee’s

photograph. See Saf-C 1003.03(c). Given the increasing reliance

on state-issued photo identification cards (e.g., for airline

travel), plaintiffs complain that they are being unfairly (and

unconstitutionally) disadvantaged and discriminated against and,

in the process, are being denied an essential form of government-

issued identification.

In response, the State says that it has made clear to all

DMV employees that temporary driving permits are not to be issued

to anyone who is merely renewing an expired New Hampshire

driver’s license; only applicants for an original New Hampshire

39 driver’s license are issued temporary driving permits, while

their applications and supporting documents are being verified.

The State also says it is in the process of renegotiating its

contract with one of its suppliers s o , in the future, the 45-day

temporary permits will include a photograph of the permit holder.

As to its policy of issuing the 45-day paper driving permit

to non-citizen applicants for original driver’s licenses, while

United States citizens are issued a 6-month laminated permit

bearing a photograph of the holder, the State says its practice

is justified by “compelling safety and security interests.”

Defendant’s memorandum (document n o . 11) at 1 1 . See also Exh. F

to defendant’s memorandum, Affidavit of William Haynes, Jr., at

para. 1 1 ; Exh. G to defendant’s memorandum, Affidavit of Arthur

S . Garlow, at para. 1 6 . The State does not, however, explain how

or why those “security concerns” are unique to non-citizens, nor

does it explain why those concerns, whatever they might b e , could

not be adequately addressed if the State were simply to treat

citizens and non-citizens alike and issue both groups the 6-month

laminated permit bearing a photo identification. Instead, the

State asserts:

40 On non-U.S. citizen original applications, when the non-citizen does not have a license from another state, New Hampshire cannot check the non-citizen’s driving record to see if there are outstanding problems through the problem driver pointer system (“PDPS”) . . . . It is also not feasible to contact the non-citizens[’] home country for driving records.

Defendant’s memorandum at 3 . Of course, the State faces the

identical problem when a citizen of the United States does not

hold a driver’s license issued by another state. Yet, the State

fails to articulate why its administrative regulations treat a

similarly situated citizen and non-citizen in such a disparate

manner. Because the State has failed to articulate even a

rational basis for its classification with respect to issuing

temporary permits, and because the court cannot think of one,

plaintiffs are entitled to injunctive relief as to that limited

aspect of the challenged administrative regulations.

These days, state-issued photographic identification cards

serve as a common currency of personal identification and have

become an increasingly essential part of day-to-day life. Absent

even some rational justification for depriving (albeit

temporarily) resident non-citizens of that essential form of

41 identification, the State’s current practice of issuing non-

citizens a paper 45-day permit, while issuing citizens a 6-month

laminated photo-I.D. permit, cannot stand.

C. Allegedly Unconstitutional “Unwritten Policies.”

Finally, plaintiffs challenge two allegedly unwritten

policies of the DMV: (1) a requirement that non-citizens renew

their New Hampshire driver’s licenses more frequently than the

statutory 5-year period; and (2) a requirement that non-citizens

provide proof of residency when they are simply renewing an

expired (but otherwise valid) New Hampshire driver’s license.

Some employees of the DMV might well have imposed one or both of

the described unwritten policies on one or more of the plaintiffs

prior to the filing of this suit, but the State has since

remedied that situation.

First, the State has made clear to all DMV employees that

the expiration date of driver’s licenses issued to non-citizens

must be linked to the expiration date of the legal status

documents provided by the applicant. See Exh. C-1 to defendant’s

memorandum (document n o . 4 0 ) , “Clarification of the Pilot

42 Program” (April 2 7 , 2005) (“Expiration dates of driver licenses

will be tied to the expiration date of the legal status documents

provided by the applicant.”). S o , for example, if a non-citizen

applicant provides documentation demonstrating that he or she may

lawfully remain in this country for, say, two years, his or her

driver’s license will expire at the end of that two-year period.

That practice is specifically mandated by the Real ID Act. See

id. at § 202(c)(2)(C)(ii).

Additionally, legislation was recently enacted to allow the

DMV to pro-rate the $50 license fee, thereby allowing applicants

who are eligible for licenses of fewer than 5 years to pay only a

pro-rated portion of the 5-year statutory $50 fee (i.e., $10 for

each year that the license is valid). See N.H. Rev. Stat. Ann.

263:42 I (effective January 1 , 2006). That practice will also

eliminate the issue of plaintiffs receiving “duplicate” licenses

that bear the blue bar beneath their photographs - a circumstance

that was the product of DMV employees’ good faith efforts to

assist non-citizens, by processing their license renewal

applications in a way that implicated a much lower statutory fee

than would otherwise apply.

43 With regard to plaintiffs’ claim that some non-citizen

applicants for renewal licenses have been required to comply with

onerous requirements to demonstrate their residency, the State

has addressed that issue as well. As of at least April of 2005,

the State has made clear to all DMV employees that, “[t]here is

no requirement to prove residency upon renewal unless there is

some reasons to believe the address has changed, such as a

returned notice of renewal.” Exh. C-1 to defendant’s memorandum,

“Clarification of the Pilot Program.” That same rule applies

equally to United States citizens seeking to renew their driver’s

In light of the changes recently adopted by the State,

plaintiffs are not entitled to injunctive relief with respect to

those two allegedly unwritten “policies” of the DMV (expiration

dates and proof of residency).

Conclusion

When plaintiffs originally filed this suit, the State was

engaged in several practices that were arguably questionable from

a constitutional standpoint. But, to its credit (and perhaps at

44 the urging of plaintiffs’ counsel), the State recognized those

problems and addressed nearly all of them in ways that both

comply with constitutional requirements and protect the security

of its citizens by minimizing the opportunity for fraud in

connection with the acquisition of New Hampshire driver’s

For the reasons discussed above, plaintiffs lack standing to

challenge Saf-C 1003.04(a)(3) (road skills test) and Saf-C

1003.04(c) (documentation from home country). As to plaintiffs’

claims concerning Saf-C 1002.06(b) (requiring non-citizens to

file original license applications in Concord), as well as those

claims concerning the allegedly unwritten policies requiring non-

citizens to renew their licenses more frequently than citizens

and requiring them to provide more extensive documentation

demonstrating their New Hampshire residency, the State is

entitled to judgment as a matter of law.

Although the most glaring flaws in the State’s licensing

program have been remedied, the State continues to issue 45-day

temporary driver’s permits to non-citizen applicants for original

45 driver’s licenses, while it issues six month temporary licenses

to similarly situated United States citizens. Because the State

has failed to offer sufficient justification for that

classification based upon citizenship status, and the concomitant

disparate treatment of non-citizens, plaintiffs are entitled to

injunctive relief to prohibit the enforcement of the offending

administrative regulation.

Accordingly, plaintiffs’ motion for preliminary and

permanent injunctive relief (document n o . 4 ) is granted in part,

and denied in part. It is granted to the extent that the

Commissioner of the New Hampshire Department of Safety is hereby

enjoined from enforcing the provisions of Saf-C 1003.04(e)

(issuance of a 45-day temporary driving permit to non-citizen

applicants). In all other respects, however, plaintiffs’ motion

is denied.

The State’s motion for partial dismissal (document n o . 17)

i s , for the reasons set forth in plaintiffs’ opposition, denied.

The State’s motion to exclude plaintiffs’ expert (document n o .

36) and its motion to strike (document n o . 44) are denied as

46 moot. Plaintiffs’ motion for summary judgment (document no. 41)

and the State’s motion for summary judgment (document no. 40) are

both granted in part, and denied in part, consistent with the

terms of this order. For the reasons set forth in defendant’s

memoranda, plaintiffs’ claims based on alleged violations of

their constitutional rights to due process and travel are denied.

See also Miller v. Reed, 176 F.3d 1202, 1205-06 (9th Cir. 1999).

The Clerk of the court shall enter judgment in accordance

with this order and close the case.

SO ORDERED. ^-^

Steven J./McAuliffe Chief Judge

March 29, 2006

cc: Christine C. Wellington, Esq. Melanie M. Chaput, Esq. Stephanie A. Bray, Esq. Nancy J. Smith, Esq.