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Jewish Community Action v. Commissioner of Public Safety

March 11, 2003


Department of Public Safety File No. CX021214

Considered and decided by Minge, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.


1. The existence of good cause to engage in exempt rulemaking is a question of law.

2. Administrative rules adopted under the good-cause exemption do not comply with statutory rulemaking requirements when the agency fails to demonstrate with reasonable particularity how rulemaking through public procedures would harm the public interest.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

Rules declared invalid

Concurring specially, Minge, Judge


This is a pre-enforcement declaratory-judgment action over which this court has original jurisdiction under Minn. Stat. §á14.44 (2002). The petitioners seek judgment declaring invalid certain department of public safety rules pertaining to proof of identity for the issuance of drivers' licenses and state identification cards. The petitioners contend that the department exceeded its authority in promulgating the rules, failed to comply with statutory rulemaking requirements, and violated state and federal constitutions.


In January 2002, the Minnesota Department of Public Safety (DPS) issued a request for comment on a possible rule that would require applicants for Minnesota drivers' licenses or state identity cards to prove lawful presence in the United States and would link the period of validity of a short-term resident alien's license to the term of his or her visa. Because an anti-terrorism bill introduced in the legislature shortly thereafter included similar measures, the DPS postponed rulemaking to await the outcome of the legislative process. The bill passed in May 2002, without the driver's-license provisions.

In June 2002, shortly after the legislative session concluded, the DPS adopted new rules, amended an existing rule, and repealed a rule, all governing proof of identity for the issuance of drivers' licenses, drivers' permits, state identification cards, and motor-vehicle title certificates or registrations (collectively, license or licenses). Amended Minn. R. 7410.0400 provides that an applicant for a license who cannot prove identity through a previously issued Minnesota license must present a "primary document," such as an official record of birth, an adoption certificate, a listed federally issued identification card, a passport, or a listed immigration document. In addition to the "primary document," the applicant must present a "secondary document," which could be an additional primary document; a foreign driver's license, permit, or identification card with photographic or digitized images; certain birth records; or certain school records.

Minn. R. 7410.0410, a new rule, requires license applicants to prove Minnesota residency and either U.S. citizenship or lawful short-term, indefinite, or permanent presence in the United States. The rule specifies the documents acceptable as proof of residency and lawful presence.

Minn. R. 7410.1810, also a new rule, requires that a license contain a full-face image of the license-holder, with head and face unobscured and uncovered. Headcoverings are allowed only in the case of applicants suffering from illness or disease-related hair loss. In adopting this rule, the DPS also repealed Minn. R. 7410.1800, which provided an exception to the photograph requirement for applicants who opposed being photographed on religious grounds.

State agencies, such as the DPS, have statutory authority to adopt, amend, or repeal their rules, but, subject to exceptions, the agencies must follow the procedures designated in Minn. Stat. §§á14.001 to 14.69. Minn. Stat. §á14.05 (2002). Those procedures include (1) public review of the agency's statement of the need for and reasonableness of the rule, Minn. Stat. §á14.131, and (2) an opportunity for a public hearing on the proposed rule, Minn. Stat. §á14.25.

An agency may adopt, amend, or repeal a rule without following the usual rulemaking requirements if there is "good cause" to do so. This exception applies if the agency finds the usual requirements "unnecessary, impracticable, or contrary to public interest" and the rule addresses "a serious and immediate threat to the public health, safety, or welfare." Minn. Stat. ยงรก14.388 (2002). When the DPS amended rule 7410.0400, adopted rules 7410.0410 and.1810, and repealed rule 7410.1800, it invoked the "good-cause exception" and did not submit the matter for public review. Instead, as required by ...

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