IN THE SUPREME COURT OF THE STATE OF IDAHO LAWRENCE D

IN THE SUPREME COURT OF THE STATE OF IDAHO LAWRENCE D. LEWIS,

)

Plaintiff/Appellant, ) Supreme Court No. 31833 v. ) RESPONDENT'S BRIEF STATE OF IDAHO, )

DEPARTMENT OF TRANSPORTATION, )

Defendant/Respondent. )

RESPONDENT'S BRIEF

Appeal from the District Court of the First Judicial District
of the State of Idaho, in and for the County of Bonner

Honorable Steve Verby, District Judge, Presiding

HON. LAWRENCE G. WASDEN LAWRENCE D. LEWIS

Attorney General 966 Bourbon Lane

TERRY E. COFFIN Nordman, ID 83848

KAY CHIRSTENSEN (208) 443-3852

Deputy Attorneys General Pro Se Appellant P.O. Box 83720

Boise, ID 83720-0010

(208) 334-2400

Attorneys for Respondent

TABLE OF CONTENTS
Statement of the Case.................................................................................................................... 1

A. Nature of the Case.......................................................................................................... 1

B. Course of Proceedings and Statement of Facts.......................................................... 1

Issues on Appeal ........................................................................................................................... 4

Standard of Review ....................................................................................................................... 5

Argument ....................................................................................................................................... 6

A. THE DISTRICT COURT DID NOT ERR IN DETERMINING

THAT THE DENIAL OF LEWIS' APPLICATION FOR A DRIVER'S LICENSE WAS SUPPORTED BY SUFFICIENT

EVIDENCE ................................................................................................................. 6

1. Applicants for driver's licenses must comply with Idaho Code § 49-306............................................................................................

2. Lewis' refusal to provide his assigned social security

number is sufficient grounds for denial of his application

for renewal of his driver's license........................................................................... 7

B. THE DISTRICT COURT DID NOT ERR IN DETERMINING

THAT LEWIS SHOULD BE REGARDED AS AN INDIVIDUAL WHO HAS BEEN ASSIGNED A SOCIAL

SECURITY NUMBER ................................................................................................ 8

1. Lewis' arguments with respect to the validity of his

assigned social security number are not controlling..........................................

2. Use of the social security number is an appropriate means of verifying identity..................................................................................

3. There is no contract between Lewis and the Social Security Administration....................................................................................

C. THE DEPARTMENT'S REFUSAL TO RENEW LEWIS'

DRIVING PRIVILEGES UNDER IDAHO CODE § 49-306 DOES NOT VIOLATE HIS CONSTITUTIONAL RIGHT TO

FREE EXERCISE OF RELIGION.............................................................................. 11

1. The right of free exercise does not relieve an individual of

the obligation to comply with a valid and neutral law of

general applicability............................................................................................. 11

8 10 10

2. The requirement that an applicant for a driver's license

provide his social security number does not violate Idaho's

Free Exercise of Religion Act....................................................................... 12

3. Idaho Code § 49-306(2) furthers a compelling government interest.............. 13

4. Requiring disclosure of a social security number on an

application for a driver's license is the least restrictive

means of accomplishing a compelling state interest.................................... 16

D. THE DEPARTMENT IS ENTITLED TO AN AWARD OF ATTORNEY FEES AND REASONABLE EXPENSES ON APPEAL PURSUANT TO IDAHO CODE § 12-117, I.A.R. 41,

AND I.R.C.P. 54....................................................................................................... 18

Conclusion .................................................................................................................................. 19

TABLE OF CASES AND AUTHORITIES
Cases
Adams v. City of Pocatello, 91 Idaho 99, 416 P.2d 46 (1966) ......................................................... 15

Bissett v. State, 111 Idaho 865, 727 P.2d 1293 (Ct. App. 1986) ...........................................	15,16
Brinkmeyer v. Brinkmeyer, 135 Idaho 596, 21 P.3d 918 (2001) ............................................	15,16
		18 17 15 15
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S. Ct. 791 (1974).................................
Gordon v. State, 108 Idaho 178, 697 P.2d 1192 (Ct. App. 1985) .........................................
Hutchinson v. State, 134 Idaho 18, 995 P.2d 363 (Ct. App. 1999).........................................
In the matter of the Driver's License Suspension of Marshall, 137 Idaho 337,
48 P.3d 666 (2002)....................................................................................................		6
Levin v. Idaho State Bd. of Medicine, 133 Idaho 413, 987 P.2d 1028 (1999) .......................		6
Miller v. Reed, 176 F.3d 1202 (1999)....................................................................................	11,	12,13
	11,	12,13
Roles v. Townsend, 138 Idaho 412, 64 P.3d 338 (Ct. App. 2003) .......................................		13
State v. Bissett, 116 Idaho 477, 776 P.2d 1196 (Ct. App. 1989) ..........................................		15
		15
State v. Crisman, 123 Idaho 277, 846 P.2d 928 (Ct. App. 1992) .........................................		15
		15
State v. Reed, 107 Idaho 162, 686 P.2d 842 (Ct. App. 1984) ..............................................		15
		15
State v. Wilder, 138 Idaho 644, 67 P.3d 839 (Ct. App. 2003) ..............................................	10,	14
Thomas v. Review Bd. 450 U.S. 707, 101 S. Ct. 1425,	10,	14

67 L. Ed.2d 624 (1981) ..................................................................................................... 17

Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Ct. App. 1985) ................................................... 14

Statutes

Title 67, chapter 52, Idaho Code ......................................................................................................... 5

Idaho Code § 12-117 ....................................................................................................................... 18

Idaho Code § _49-306_{..........................................................................................................................................................}6, 7, 14

Idaho Code § 49-306(2) .............................................................................................................. 7, 13

Idaho Code § 49-306(2)(a) ................................................................................................................ 8

Idaho Code § 49-306(2)(b)................................................................................................................ 7

Idaho Code § 49-330.......................................................................................................................... 5

6 6 6

Idaho Code § 73-401, et seq............................................................................................................. 12

Idaho Code § 73-402(1) .................................................................................................................. 12

Idaho Code § 73-402(3) .................................................................................................................. 13

Title 7, Chapter 42, United States Code......................................................................................... 9, 10

42 U.S.C. § 666(a)(13)..................................................................................................................... 14

Other Authorities

Title 20, chapter 3, Part 400, CFR .................................................................................................... 10

20 CFR § 422.103 ............................................................................................................................. 9

20 CFR § 422.110 ......................................................................................................................... 9

LA.R. 41 ....................................................................................................................................... 18

I.R.C.P. 54(e)(1) ........................................................................................................................... 18

Idaho Code §	67-5279(1)	.............................................................................................
Idaho Code §	67-5279(3)	.............................................................................................
Idaho Code §	67-5279(4)	.............................................................................................

STATEMENT OF THE CASE A. Nature of the Case

Appellant Lawrence C. Lewis (hereinafter "Lewis") appeals the District court's Decision on Judicial Review, affirming the decision of the State of Idaho, Department of Transportation (hereinafter "Department") denying Lewis' application for renewal of his driver's license.

B. Course of the Proceedings and Statement of Facts

This action arose when Lewis completed an application for the renewal of his driver's license, but refused to provide his statutorily required social security number. R. Exhibit A, p. 118. Although Lewis acknowledges having been issued a social security number sometime in 1963, he claims to have ceased using his social security number for contractual and religious reasons. R. Exhibit A, pp. 51-62, 78-81, 86-87, and 105-106. Lewis states that he has contacted the Social Security Administration in an attempt to

have his number cancelled or revoked but the Social Security Administration has not done so. R. Exhibit A, pp. 64-69.

As a result of his refusal to provide his social security number as a part of the application for renewal, Lewis' license was suspended. On June 20, 2002, following an administrative proceeding, the hearing officer issued findings of fact, conclusions of law and a preliminary order. R. Exhibit A, pp. 101-102. The hearing officer upheld the Department's decision to deny renewal of Lewis' driver's license until such time as Lewis provided the Department with a correct and verifiable social security number.

Lewis requested reconsideration. R. Exhibit A, pp. 93-100. On July 5, 2002, the hearing officer issued an order confirming the previous decision. R. Exhibit A, p. 90.

Lewis appealed the hearing officer's preliminary order to the Idaho Transportation Board and, as the designee of the Idaho Transportation Board and as Director of the Department of Transportation, Dwight M. Bower conducted a final review. Following additional

briefing by the parties, Director Bower issued his final order on December 2, 2002. Director Bower affirmed the decision of the hearing officer, sustaining the Department's decision to deny Lewis' application for renewal of his Idaho driver's license on the ground that he had failed to provide the required information. R. Exhibit A, pp. 13-22. Lewis' subsequent motion for reconsideration was denied by the Director on December 30, 2002. R. Exhibit A, p. 1.

Lewis then appealed to the district court. R. Exhibit A, pp. 1-4. There he reasserted his claims of religious freedom and contract theory as the bases for overturning the Director's decision. R. Exhibit A, pp. 17-18. On January 16, 2004, following oral argument, the district court remanded the case to the Department and directed that it make additional findings. R. Exhibit A, pp. 81-83.

On remand, the Department conceded that Lewis holds a sincere religious belief that motivates his refusal to provide his social security number for driver's license purposes. The hearing officer concluded that the State of Idaho has a compelling interest in collecting and using social security numbers from all applicants for driver's licenses because it is required to do so by the federal Welfare Reform Act in connection with

enforcement of child support. The hearing officer also determined that the state has a compelling interest in regulating public road safety and in properly identifying people issued driver's licenses. Because the use of social security numbers simplifies

verification of the applicant's identity and ensures that drivers transferring from another state are properly matched with their driving records, the hearing officer found that the goal of regulating public road safety is facilitated by tracking drivers. The hearing officer also determined that the disclosure of an individual's social security number is the least restrictive means of accomplishing this compelling state interest because the use of social security numbers is the most efficient method of locating interstate driving records, identifying drivers in-state, and keeping dangerous drivers off the road. The order on remand was entered April 17, 2004. R. Exhibit A, pp. 175-178.

On appeal to the district court, Lewis argued that the State of Idaho does not have a compelling interest because the entire identification structure will be changed in the near future. R. Exhibit A, pp. 8-38, 48-74, and 84-108. He also argued that the use of social security numbers was not the least restrictive means of achieving a compelling state interest. The district court entered its Decision on Judicial Review on March 11, 2005, affirming the Department's denial of Mr. Lewis' application for renewal of his driver's license. R. Exhibit A, pp. 183-193. The district court held that the State of Idaho has a compelling state interest in complying with federal requirements and in protecting the public through regulation and enforcement of the motor vehicle laws. The district

court determined that the requirement of an applicant's social security number was the least restrictive means of achieving that interest.

ISSUES ON APPEAL

Mr. Lewis has phrased the issues on appeal as follows: I.

Did the Department of Transportation, through its Hearing Officer, Director, and Legal Counsel (Deputy Attorneys General), and Judge Verby err when they failed to address the validity of a contract, arrangement, scheme for legislative benefits, doohickey, thin,gamajig, whatchamacallit, or whatever the beast /application entered into by a minor?

II.

Did the Department of Transportation, through its Hearing office, Director, and Legal Counsel (Deputy Attorneys General), and Judge Verby err when they failed to address the validity of the Social Security number's voiding because of fraud?

Did the Department of Transportation, through its Hearing Officer, Director, and Legal Counsel (Deputy Attorneys General), and Judge Verby err when they failed to state whether the Social Security system is a contract of adhesion, but rather played cat and mouse games with Appellant by putting his understanding of it in quotes, as if to disagree without providing any evidence of legal theory why the Social Security system is a contract of adhesion or something else for those who apply.

IV.

Did the Department of Transportation, through its hearing Officer, Director, and Legal Counsel (Deputy Attorneys General), and Judge Verby err when they failed to establish that the requirement of the SS# could not be satisfied in this case and other like it by a less restrictive means?

Did Judge Verby err by merely stating in his DECISION ON JUDICIAL REVIEW, March 11, 2005, page 190 of the Clerk's record, that the "Court interprets this statement to mean that the Social Security card, as opposed to the Social Security number, is not an identification card?

VI.

Did Judge Verby completely and properly address the Idaho Constitution at Article I, section 4, guaranty of religious liberty, and the statute passed in accordance with this Constitutional provision, I.C. Section 73-403 Free Exercise of Religion Protected.

VII.

Did Judge Verby err when he referred to my evidence of silence on the part of the Social Security Administration on 3 Certified deliveries of legal documents to them as "without legal significance."

The Department has added the following additional issue. VIII.

Whether the Department is entitled to an award of attorney fees on appeal pursuant to Idaho Code § 12-117, I.A.R. 41, and I.R.C.P 54

STANDARD OF REVIEW

Idaho Code § 49-330 provides a person denied a driver's license by the Department the right to file a petition for judicial review pursuant to the Idaho Administrative Procedures Act, title 67, chapter 52, Idaho Code. The Administrative Procedures Act provides that the agency order may be overturned only where it: (a) violates statutory or constitutional provisions; (b) exceeds the agency's statutory authority; (c) was made upon unlawful procedure; (d) is not supported by substantial evidence in the record as a whole; or (e) is arbitrary, capricious, or an abuse of discretion.

Idaho Code § 67-5279(3). The order must be upheld if substantial rights of the appellant have not been prejudiced. Idaho Code § 67-5279(4).

In an appeal from the decision of the district court acting in its appellate capacity in a review under the administrative procedures act, the appellate court does not focus on the rulings of the district court. The court reviews the agency record independently of the

district court's decision. In the matter of the Driver's License Suspension of Marshall, 137 Idaho 337, 48 P.3d 666 (2002). The appellate court does not substitute its judgment for that of the agency as to the weight of the evidence presented, Idaho Code § 675279(1), but defers to the agency's findings of fact unless those findings are clearly erroneous. Levin v. Idaho State Bd. of Medicine, 133 Idaho 413, 987 P.2d 1028 (1999).

ARGUMENT

A. THE DISTRICT COURT DID NOT ERR IN DETERMINING THAT THE DENIAL OF LEWIS' APPLICATION FOR A DRIVER'S LICENSE WAS SUPPORTED BY SUFFICIENT EVIDENCE.

1. Applicants for driver's licenses must comply with Idaho Code § 49-306.

The requirements for applicants for drivers' licenses in the State of Idaho are set forth in statute at Idaho Code § 49-306. This statute creates two avenues by which to obtain a driver's license. In relevant part, it requires that:

(2) Every application shall state the true and full name, date of birth, sex, declaration of Idaho residency, Idaho residence address and mailing address, if different, of the applicant, height, weight, hair color, and eye color, and the applicant's social security number as verified by the applicant's social security card or by the social security administration. (a) The requirement that an applicant provide a social security number as verified by his social security card or by the social security administration

shall apply only to applicants who have been assigned a social security number.

(b) An applicant who has not been assigned a social security number shall: (1) Present written verification from the social security administration that the applicant has not been assigned a social security number; and (ii) Submit a birth certificate, passport or other documentary evidence issued by an entity other than a state or the United States; and (iii) Submit such proof as the department may require that the applicant is lawfully present in the United States.

The information to be provided by an applicant depends upon whether or not the applicant has been assigned a social security number. An applicant who has been assigned a social security number must provide that number as verified by his social security card or the Social Security Administration. Idaho Code § 49-306(2). An applicant who has not been assigned a social security number is required to provide other information and verification. Idaho Code § 49-306(2)(b).

Lewis was assigned a social security number and is subject to the requirements of Idaho Code § 49-306. He does not qualify for the alternative application procedure provided in Idaho Code § 49-306(2)(b). Having been assigned a social security number, Idaho law required Lewis to provide that information as a condition of licensure.

2. Lewis' refusal to provide his assigned social security number is sufficient grounds for denial of his application for renewal of his driver's license.

Lewis readily acknowledges that he applied for and was assigned a social security number at a previous time. Lewis takes issue with the continued use of that number. Among other things, Lewis contends he no longer has a social security number because he unilaterally revoked his "contract" with the Social Security Administration. He argues that the social security scheme violates five of the Ten Commandments because the

number is "either the precursor to the `Mark of the Beast,' or is actually the mark itself." R. Exhibit A, p. 118. Lewis argues that, because he was a minor when he first applied for his number, there is a contract between himself and the Social Security Administration

that is unenforceable or void and, therefore, the number that was previously assigned to him is no longer valid.

Lewis provided documentation purporting to notify the Social Security Administration that he had revoked his "contract." R. Exhibit A, pp. 105-112. Despite his several arguments, Lewis failed to present any evidence to demonstrate that the Administration had withdrawn, revoked, or otherwise retracted his previously assigned number.

Idaho Code § 49-306(2)(a) requires an applicant who has been assigned a social security number to provide it as a condition of renewal. Lewis refused, and continues to refuse, to provide his assigned social security number in support of his application for driver's license renewal. The Department's decision to deny the application based on a failure to comply with the statutory requirement based on Lewis' refusal to provide his assigned social security number, was supported by substantial evidence.

B. THE DISTRICT COURT DID NOT ERR IN DETERMINING THAT LEWIS SHOULD BE REGARDED AS AN INDIVIDUAL WHO HAS BEEN ASSIGNED A SOCIAL SECURITY NUMBER.

1. Lewis' arguments with respect to the validity of his assigned social security number are not controlling.

As noted, Lewis challenges the validity of his original application for a social security number. He alleges that his social security number was issued on the basis of a

fraud and should be invalidated. He asserts that the social security system constitutes an impermissible contract of adhesion. In support of his allegations, Lewis introduced

documentary evidence and testimony concerning his communications with the Social Security Administration.

The district court considered Lewis' claim that he should not be regarded as having been assigned a social security number and found it to be without legal merit. Established at title 7, chapter 42, United States Code, the Social Security Administration is a function of the federal government.. The process for application for registration for social security numbers appears in federal regulations 20 CFR § 422.103. Individuals wishing to change their records must adhere to the requirements of 20 CFR § 422.110. Individuals wishing to withdraw applications find the process and forms detailed in the

Social Security Administration's Program Operation Manual. As the federal government has established the parameters by which matters concerning social security numbers are to be addressed, Lewis' arguments regarding the assignment of his social security number, as well as his arguments based in contract and fraud with respect to the validity of that number, are best addressed in that forum.

The subject matter that provides the basis for Lewis' concerns rests within the jurisdiction of the Social Security Administration. That Lewis acknowledged this authority is apparent from the evidence that was submitted below; that the Social Security Administration did not respond to Lewis' correspondence is not controlling in this matter. The district court correctly concluded that the Social Security Administration's failure to

respond to Lewis' inquiries had no significance with respect to the immediate proceedings.

2. Use of the social security number is an appropriate means of verifying identity.

A social security number is part of a national identification system that simplifies verification of a person's identity, preventing confusion due to name variations or as between individuals with the same name. Lewis contends that the district court judge erred in interpreting the Social Security Administration's proviso that the social security card is "for Security and Tax Purposes-Not for Identification." The district court interpreted this to mean that the Social Security Administration was prohibiting use of a social security card, rather than the number, as a means of establishing identification.

The social security card is evidence of a number having been assigned to a particular name. While there may be individuals who share the same name, no one shares the same social security number. It is a unique identifier. Idaho has recognized that the requirement that an individual divulge a social security number in order to obtain a driver's license is a valid means of verifying identity and a legitimate exercise of the state's police power. State v. Wilder, 138 Idaho 644, 67 P.2d 839 (Ct. App. 2003).

3. There is no contract between Lewis and the Social Security Administration.

Lewis applied to the Social Security Administration for issuance of a social security number. Lewis' social security number was assigned in accordance with federal statutes and regulations. These statutes and regulations appear at title 42, chapter 7, U.S.C., and in CFR at title 20, chapter 3, Part 400. Lewis' rights with respect to the

issuance of that number are governed by federal statutes and regulations, not contract law.

Evidence in the record indicates that Lewis attempted to communicate with the Social Security Administration with respect to the issuance of that number and his desire that the account be cancelled. Lewis indicates that his petitions were, essentially, ignored. To the extent that Lewis challenges the validity of the Social Security Administration's authority to issue such a number or the conditions under which it was issued, his remedy lies with the Social Security Administration.

C. THE DEPARTMENT'S REFUSAL TO RENEW LEWIS' DRIVING PRIVILEGES UNDER IDAHO CODE § 49-306 DOES NOT VIOLATE HIS CONSTITUTIONAL RIGHT TO FREE EXERCISE OF RELIGION.

1. The right of free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.

Lewis argues that the Idaho statute requiring disclosure of an applicant's social security number violates his right to the free exercise of religion. A similar claim was made to the United States Ninth Circuit Court of Appeals in the case of Miller v. Reed, 176 F.3 ^rd1202 (May 24, 1999). In that case, Mr. Miller challenged the California Department of Motor Vehicle's rejection of his application to renew his driver's license. California's motor vehicle code required disclosure of a social security number in a driver's license application. Mr. Miller refused to disclose his social security number on the grounds of his deeply held religious beliefs and, based upon Mr. Miller's refusal, the California DMV rejected his application for renewal.

The Ninth Circuit held that California's requirement that all individuals provide a social security number in order to obtain a driver's license was a neutral law of general applicability that did not violate Mr. Miller's constitutional right to the free exercise of

religion. The Court noted that, under the rational basis test, "a rationally based, neutral law of general applicability does not violate the right to free exercise of religion even though the law incidentally burdens a particular religious belief or practice." Miller, 176 F.3 ^rdat 1206. The Court also held that, "The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Id.

Idaho's statutory requirement for disclosure of an applicant's social security number is like that in California. Idaho's law applies to all applicants for driver's licenses and identification cards. It is rationally based and neutral. Idaho's requirement does not violate Lewis' right to the free exercise of religion.

2. The requirement that an applicant for a driver's license provide his social security number does not violate Idaho's Free Exercise of Religion Act.

Idaho's Free Exercise of Religion Act, Idaho Code §§ 73-401, et seq., became effective February 1, 2001. The Act recognizes that the "[free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral." Idaho Code § 73-402(1). The Act states that the government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

This rule is not without exception. The exception is that government may substantially burden a person's exercise of religion if it demonstrates that the burden to the person is both

i. Essential to further a compelling governmental interest;

ii. The least restrict means of furthering that compelling governmental interest.

Idaho Code § 73-402(3); see, e.g., Roles v. Townsend, 138 Idaho 412, 64 P.3d 338 (Ct. App. 2003) (tobacco-free policy of State Board of Correction did not violate inmate's right to freely exercise his Native American religion under Free Exercise of Religion Act where the state had compelling interests in eliminating tobacco in prisons and the policy was the least restrictive means to further those interests).

The district court correctly concluded, based on the Miller analysis, that Idaho Code § 49-306(2) is facially neutral. The question then becomes whether the Department demonstrated that the requirement of a social security number furthers a compelling government interest and, if so, whether it is the least restrictive means of furthering that interest.

3. Idaho Code § 49-306(2) furthers a compelling government interest.

In 1996 and again in 1997, in compliance with the (federal) Welfare Reform Act, the Social Security Act was amended. These amendments required states to adopt laws governing the recording of social security numbers on applications for licenses and permits of many kinds in order to enhance effectiveness of child support enforcement. Specifically, the states were mandated to adopt procedures requiring that the social

security number of "any applicant for a professional license, driver's license, occupational license, recreational license, or marriage license be recorded on the application" for that license. 42 U.S.C. § 666(a)(13). In 1998, in compliance with this federal mandate, the Idaho legislature amended Idaho Code § 49-306.

Idaho has a compelling state interest in complying with federal laws. As noted by the district court, it also has a compelling state interest in the support of its children, which protects and promotes their health and welfare. See, e.g., Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Ct. App. 1985) (providing and assuring maximum opportunities for parental love, guidance, support and companionship is a compelling state interest that warrants reasonable interference with the fundamental right of travel when necessary).

In the context of the constitutional right to travel, the Idaho Court of Appeals has noted that:

The requirement that drivers be licensed before operating motor vehicles on the streets and highways of this state promotes public safety and order by requiring that vehicle operators meet minimal standards for knowledge of the rules of the road and driving competence. It is reasonable, in furtherance of that objective, for the state to employ means to verify the identity of license applicants, such as the use of social security numbers. Other jurisdictions have held that the requirement that a social security number be furnished when applying for a driver's license or license plate is a legitimate exercise of the state's police power as an aid to establish identity. Schmidt v. Powell, 4 111.App.3d 34, 280 N.E.2d 236, 237-38 (1972); Devon, Inc. v. State, Bureau of Motor Vehicles, 31 Ohio App.3d 130, 508 N.E.2d 984, 986 (1986). We are likewise of the view that the requirement that an applicant divulge a social security number in order to obtain a driver's license is a legitimate exercise of the state's police power.

State v. Wilder, 138 Idaho 644, 67 P.3d 839 (Ct. App. 2003).

The Idaho Court of Appeals has, on several occasions, held that the state's regulation and enforcement of motor vehicle laws, including driver's license requirements, vehicle registration requirements, and insurance requirements, do not unconstitutionally infringe upon an individual's right to free exercise of religion. Bissett v. State, 111 Idaho 865, 727 P.2d 1293 (Ct. App. 1986); State v. Bissett, 116 Idaho 477, 776 P.2d 1196 (Ct. App. 1989); State v. Crisman, 123 Idaho 277, 846 P.2d 928 (Ct. App. 1992); and Hutchinson v. State, 134 Idaho 18, 995 P.2d 363 (Ct. App. 1999).

Similarly, the courts of this state have consistently held that the state has a compelling interest in the regulation and enforcement of motor vehicle laws in order to protect the health, safety, and welfare of the traveling public through the reasonable exercise of the state's police power. See, e.g., Gordon v. State, 108 Idaho 178, 697 P.2d 1192 (Ct. App. 1985); State v. Reed, 107 Idaho 162, 686 P.2d 842 (Ct. App. 1984); Adams v. City ofPocatello, 91 Idaho 99, 416 P.2d 46 (1966).

By requiring social security numbers, the state complied with the federal mandate intended to facilitate the compelling purpose of child support enforcement. The state also has a compelling interest in regulating the safety of the roads and in properly identifying people issued driver's licenses in the state of Idaho. Social security numbers are part of a nationally recognized, uniform system of identification that simplifies the verification of a person's identity and prevents name variations or confusion of individuals with similar or identical names. As noted by the district court, because other states use the same system, it permits Idaho and other states to ensure that drivers transferring to or from

other states are properly matched with their driving records. The Department's conclusion, that the requirement of social security numbers furthers a compelling state interest, should be affirmed.

4. Requiring disclosure of a social security number on an application for a driver's license is the least restrictive means of accomplishing a compelling state interest.

In its order on remand, the Department specifically addressed the issue of whether requiring disclosure of a social security number on an application for a driver's license was the least restrict means of accomplishing a compelling state interest. The Department concluded that it was. In addition to the need to strictly comply with federal law, the Department observed that the disclosure was the least restrictive means because it was the most efficient method of locating interstate driving records, identifying drivers in-state, and keeping dangerous drivers off the road. In essence, the Department

determined that the requirement of disclosure was the least restrictive means of accomplishing two compelling state interests.

There is no Idaho case discussing the requirement of social security numbers as a part of the driver license application process in relationship to the free exercise of religion. Other Idaho cases have consistently held that the state has a compelling interest in the regulation and enforcement of motor vehicle laws and that vehicle registration requirements and insurance requirements do not unconstitutionally infringe upon an individual's right to free exercise of religion. Bissett v. State, 111 Idaho 865, 867-868, 727 P. 2d 1293, 1295-1296 (Ct. App. 1986) (state laws requiring licensure of competent

drivers and the registration and insurance of motor vehicles are essential to the state's compelling interest.)

In Thomas v. Review Bd., 450 U.S. 707, 101 S. Ct. 1425, 67 L.Ed.2d 624 (1981) the court held that a state may justify an inroad on religious liberty by showing that the regulation is the least restrictive means of achieving a compelling state interest. Whether that interest is compliance with a federal mandate, enhancing the state's ability to enforce child support requirements, or locating interstate driving records as a part of the enforcement of motor vehicle laws for the public protection, safety and order, use of an existing, recognized, and efficient system is justified and the least restrictive means of accomplishing those purposes.

Lewis argues that use of social security numbers cannot be sustained, that they are a mere administrative convenience. He suggests that a special exemption should be carved out for him. Appellant's Opening Brief, p. 19. Lewis references several cases in support of his proposition, including Cleveland Bd. ofEduc. V. LaFleur, 414 U.S. 632, 94 S. Ct. 791 (1974) (striking down school board's overly inclusive policy where reasonable alternatives had been identified). In Cleveland, the court refused to require an individualized approach on the basis that it was not reasonable.

In view of the federal statute mandating states to require social security numbers on applications for driver (and other) licenses, the Department's requirement that individuals assigned social security numbers provide them is not only the least restrictive means, it is the only means. This is not merely administrative convenience. The social

security system is a constant: an individual carries the same number from one state to another, providing a reliable and established mechanism for identification verification. Lewis' argument that this system may be replaced by a different scheme is not timely. At

this point in time, there is no reasonable alternative.

D. THE DEPARTMENT IS ENTITLED TO AN AWARD OF ATTORNEY FEES AND REASONABLE EXPENSES ON APPEAL PURSUANT TO IDAHO CODE § 12-117, I.A.R. 41, AND I.R.C.P. 54.

Idaho Code § 12-117 provides that the court may, in its discretion, award the prevailing party in any administrative or civil judicial proceeding involving as adverse parties a state agency and a person, reasonable attorney's fees, witness fees, and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law. The standard for an award of attorney fees on appeal, as provided in LA.R. 41, is the same standard as used at the

district court level under I.R.C.P. 54(e)(1). Rule 54(e)(1) provides for the discretionary award of reasonable attorney fees to the prevailing party where the issues were pursued or defended frivolously, unreasonably, or without foundation. Brinkmeyer v. Brinkmeyer, 135 Idaho 596, 601, 21 P.3d 918, 923 (2001).

The facts are not in controversy. Lewis makes no new arguments in his appeal to this Court. He has failed to show that the district court misapplied the law in the case. Therefore, the Department requests this Court to award its attorney fees and reasonable expenses.

CONCLUSION

The factual background of this case is straightforward. Lewis applied for and was assigned a social security number. He refused to disclose his assigned number despite a statutory requirement that he do so as a condition of driver's license renewal. Having been assigned a social security number, Lewis did not fall within the statutory exemption. The Department denied his application for driver's license renewal.

The Department determined that the state has a compelling interest both in complying with federal law for child support enforcement and in motor vehicle regulation for public protection. The Department also determined that collecting social security numbers was the least restrict means of furthering these compelling interests. The Department respectfully requests this Court to affirm the district court's Decision on Judicial Review, upholding the Department's denial of the application for driver's license renewal, and award to the Department its attorney fees and reasonable expenses incurred in the defending this appeal.

DATED this 24^ih day of October 2005.

STATE OF IDAHO

OFFICE OF THE ERAL

-rl( op

i `~M i I I ~

Deputy A ttorn