In the summer of 1997, Scott found out about a proposal offered by Alabama driver licensing authorities to introduce by deceit a requirement of fingerprinting for driver licenses here in our state. As a result, we threw together a little coalition of rabble rousers, complained all around the state, had a little protest with media coverage at the courthouse and generally interrupted the governor's vacation. Remarkably within the span of 3 weeks, so much heat was applied to "officialdom" that this proposal was dropped and it has never again resurfaced. The State possibly lost a couple of million bux in new fingerprinting equipment which had to be returned to the manufacturer.
During the time of this controversy, Scott learned about a regulation which our licensing officials at the Department of Public Safety had adopted in February, 1996. This new regulation prevented anyone without a social insecurity number ("SSN") from obtaining an Alabama driver license. This caused serious concerns for Scott: his twin sons, Nathan and Chris, were about to become 15 years of age and they wanted to get licenses so that they could drive. However, Scott's wife homeschooled both Nathan and Chris and they did not have SSNs. The McDonalds also had religious convictions about getting SSNs for their sons, that belief being a common one: the SSN is that vile, horrible "Mark of the Beast" described in Revelation.
When that birthday in July, 1997, came around, Scott took his sons to the local DPS office here in Huntsville and tried to get licenses for them. Naturally, those "public servants" followed the regulation, trampled upon the McDonalds' religious beliefs and refused to even discuss licenses for Nathan and Chris without having the boys' SSNs. Incensed, Scott started writing letters to various DPS officials and the Governor, yet the "system" refused to budge. But when Scott became vociferous, he began to get some results. In September, 1997, the DPS devised a "religious affidavit" which could be submitted stating that the license applicant had no SSN for religious reasons. With such an affidavit, Scott was informed that the DPS would waive the requirement of providing SSNs for his sons. Scott conferred with his lawyer (me), who contended that the DPS religious affidavit was void because it did not comply with Alabama's Administrative Procedure Act ("APA"). For this reason, such affidavits were never submitted.
In January, 1998, a small group of concerned Alabama and Mississippi folks got together and decided to help Scott sue the DPS for violating the McDonald sons' religious beliefs. Here in Alabama, the state cannot be sued because we have constitutional "sovereign immunity" for the state. However, there is a statute which allows an agency to be sued to challenge the validity of some agency action or regulation and we based our suit on that statute. A copy of the complaint is here.
This complaint was short, sweet and simple. In it we alleged the facts and fleshed out the legal theory. Factually, the complaint asserted that the McDonalds believed that the SSN was the Biblical "Mark of the Beast" and thus Nathan and Chris had religious objections to getting SSNs. It also alleged that the DPS had a regulation which prevented Nathan and Chris from getting licenses because they did not have SSNs. We sought a declaratory judgment that this regulation violated the McDonalds' "free exercise" rights under the First Amendment of the U.S. Constitution and we further sought declaratory relief to determine whether the rule was void because it lacked a statutory foundation. We also asked for an injunction, but we did not plan to speed the case along by moving for an injunction when the complaint was filed. This was a "test case."
To understand this case, it is necessary to explain in a general fashion the legal arguments upon which it was based (all issues were researched and briefed before the complaint was filed). One of the issues which was raised concerned the simple contention that the rule had no statutory foundation. As shown by the briefs discussed below, Alabama cases have declared that regulations must have some basis or foundation in a law. Further, this same principle holds that a law which merely allows an agency to adopt regulations cannot be the statutory foundation for any rule an agency might desire to adopt. In the case of the DPS's SSN regulation, the agency claimed that the rule was based on statutes which only allowed the DPS to adopt rules. But this cannot be done under Alabama law. This same SSN rule also contended that it was based upon federal law; however, recent cases have held laws like this unconstitutional. Clearly in our judgment, this rule was void because it lacked statutory support.
The First Amendment, "free exercise" claim made in the complaint is a bit more complicated. In 1990, the U.S. Supreme Court basically revamped "free exercise" jurisprudence in this country. In Employment Division v. Smith, the Court held that laws of general applicability would be enforced notwithstanding "free exercise"objections to those laws. However in the same case, the Court announced a new rule under which such claims would be recognized. If a law abridged rights in addition to "free exercise" rights, then a "free exercise" challenge to a law would "fly." In the McDonald case, the legal theory was that not only were the "free exercise rights" of Nathan and Chris being violated, but also their rights to work, travel and "not to speak" were being violated as well. The theory of the case was that the exception in Smith applied in the McDonald case.
In April, 1998, a status conference was conducted and a deadline of May 20 was given as the final date for filing any summary judgment motions. Since this was a good case for summary judgment because the facts were not disputed, both sides moved for summary judgment on this date. The McDonalds filed, because there was a 25 page limit for briefs supporting summary judgment motions, 3 such motions. The DPS filed one which sought to avoid the important constitutional questions being raised by contending that the McDonalds were not hurt because the DPS had given them the religious exemption affidavits and they had refused to execute such affidavits (some of these motions and briefs are posted at Scott's webpage). Argument on these motions was conducted in early July, 1998. On July 24, the circuit court denied the McDonalds motions and granted the one filed by the DPS. Notice of appeal was later filed and this case then went to the Alabama Court of Civil Appeals.
In the court of appeals, the McDonalds raised 4 issues. Among those issues, they challenged the SSN rule and asserted it violated their First Amendment rights. They further alleged that the rule was not based upon any statutory authority and was also void because it denied "equal protection" of the laws. Also raised was the question of whether the "religious affidavit" complied with Alabama's APA. These arguments were rejected by the Court of Civil Appeals and that opinion is here.
A review of the decision of the Alabama Court of Civil Appeals reveals some serious problems and these problems are addressed in Scott's petition for writ of certiorari:
(1) One important question relates to whether this SSN rule has a statutory foundation. When summary judgment motion was filed in the trial court, Scott addressed the statutes which the rule itself declared were its foundation and demonstrated that these statutes simply could not be the basis for the rule. In reply, the DPS answered and completely abandoned any reliance upon those statutes and asserted that other, different statutes were the basis for the rule. In rebuttal, we analyzed those statutes and again reached the conclusion that they could not support this rule. The trial court did not appear to answer this issue.
On appeal, we focused our attack upon the new statutes that the DPS relied upon. We again pointed out to the court of appeals that Alabama decisional authority did not allow rules like that of the DPS to be based upon statutes which simply allow agencies to adopt rules. We also attacked the constitutionality of 42 U.S.C., §666 and contended that recent federal appellate court cases held statutes like §666 unconstitutional. For reasons known only to the court of civil appeals, the appellate decision upheld the rule contrary to this prevailing authority.
This was a critical and very important issue in the appeal. Appellate courts like to take cases on cert which are important and this issue alone is very profound. At stake is the very heart of the welfare state which can only operate if Congress imposes its will upon the states. Yet, such actions by Congress have recently been tested and found unconstitutional and we are asking the Alabama Supreme Court to correct this error of the court of appeals. To our knowledge, no state court has ever been faced with this question and I will leave it to you to imagine how important this question is.
(2) Another important issue in this case concerns what happened during the course of Scott's appeal. In November, 1998, the people of Alabama adopted at the election a new constitutional amendment which extends greater protection to the right to freely exercise religious beliefs. When Scott's reply brief was filed with the court of appeals, we informed the court of the existence of the new amendment and stated that it should govern the decision of the appeal. Via several decisions of the U.S. Supreme Court and the Alabama Supreme Court, an appeal is to be decided in accordance with the law as it exists at the time of an appeal and legally this new amendment should have controlled this appeal. However, the court of appeals refused to follow this authority and rejected this argument.
These issues and several others form the basis for our petition for writ of cert to the Alabama Supreme Court. That court takes cases on cert for novel questions never before addressed by the Alabama appellate courts as well as cases where the court of appeals does not follow existing precedence. In Scott's case, these criteria are present and we believe that his case raises extremely interesting constitutional questions which the Alabama Supreme Court should decide. Stay tuned for this very intriguing legal battle.
Final Note: The Alabama Supremes did not grant cert. But, we will be back.
Larry Becraft