Court rules state agency acted improperly on driver’s license rules

by Elizabeth Dunbar

The Minnesota Department of Public Safety plans to challenge a court ruling that invalidated new rules for driver’s license applicants.

The Minnesota Court of Appeals ruled Tuesday the department did not follow required procedures when enacting the emergency rules in July as a part of antiterrorism measures.

The rules required new driver’s license applicants to present identification and residency documents, such as a birth certificate or passport.

Temporary visitors to the United States were issued licenses with a special “status check” label and their visa expiration dates.

In addition, the rules required a full-face photo and removed an existing exception for religious objections to photographs.

Though the decision nullified the rules, foreigners could still be subject to the new regulations if the Department of Public Safety successfully appeals or if the Legislature puts the rules into law.

“The department wants to appeal because it believes that the emergency rule process was the fastest and most effective way to make this happen,” Public Safety spokesman Kevin Smith said.

Smith said the decision will not change the use of the “status check” symbol on licenses, but foreigners with temporary visas could present another state ID card to get their licenses, avoiding the “status check” marking.

Ordinarily, a department can enact new rules only after the public has the opportunity to comment. In emergency circumstances, however, officials can skip that step if there is a “good cause” to do so.

“Good cause” means the proposed rules would address a serious threat to public health, safety or welfare and following the usual rulemaking process would harm the public interest.

According to the court decision, the Department of Public Safety did not provide adequate evidence that using the normal procedures would be contrary to public interest.

“The process of getting input from the public will result in better rules being enacted,” said Todd Noteboom, a lawyer representing the immigrant advocacy groups suing the state.

State Sen. Leo Foley, DFL-Coon Rapids, said he does not think a House-passed bill to put the rules into law will clear the Senate.

“If we need to have some kind of identifier, I would be willing to have it on the back side where store clerks and other people wouldn’t see it,” said Foley, who heads the Crime Prevention and Public Safety Committee.

Foley said Sen. Mee Moua, DFL-St. Paul, plans to introduce an alternative bill that would separate immigration status and issuing driver’s licenses.

“Most likely, we will spell out to (the Department of Public Safety) that we don’t think that’s their role,” Foley said.

The appeals court did not rule on the substance of the rules, deciding only that the Department of Public Safety did not comply with procedural requirements for emergency rulemaking.

But presiding Judge David Minge wrote in a concurring opinion that although the nation faces terrorist threats, “we are keenly aware that some past claims of seriousness and immediacy have been used to justify policies which in retrospect have been discredited” – such as the internment of Japanese-Americans during World War II.

“We were disappointed that the court didn’t go further to reach issues of substance,” Noteboom said, “but we’re pleased with the ultimate ruling.”