AGO Opinion 98002
Whether Legislation That Would Waive a Motor Vehicle Operator's License Fee for an Individual Agreeing to Become an Organ Donor is Permissible Under the Nebraska Revised Statutes and the United States Constitution
DATE: January 12, 1998
SUBJECT: Whether Legislation That Would Waive a Motor Vehicle Operator's License Fee for an Individual Agreeing to Become an Organ Donor is Permissible Under the Nebraska Revised Statutes and the United States Constitution.
REQUESTED BY: Senator Jim Cudaback, District No. 36
WRITTEN BY: Don Stenberg, Attorney General
Paul N. Potadle, Assistant Attorney General
A law providing for the waiver of motor vehicle licensing fees
for organ donors should be permissible depending on the final
language of the statute. Careful drafting of the proposed statute
should include consideration of potential free exercise of religion
and equal protection arguments and liability questions, such as
The guiding premise that must be acknowledged when addressing
whether the state can waive licensing fees for individuals who
elect to become organ donors is that there is no right to operate
a motor vehicle guaranteed by the United States Constitution or the
laws of Nebraska. In fact, the Nebraska Supreme Court has stated
that, "[a] license to operate a motor vehicle is . . . a mere
privilege." Hadden v. Aitken, 156 Neb. 215, 222 (1952). Since
driving is a privilege granted by the state, and since Nebraska has
no constitutional or statutory provision concerning how motor
vehicle operators' license fees must be set, the legislature has
plenary constitutional authority to set the cost of obtaining a
state motor vehicle operators' license.
The state may not charge an unreasonable fee. However,
generally speaking, courts have been reluctant to find licensing
fees "unreasonable" when the State charges too little or nothing
for a license. The case law tends to focus on instances where a
state charges too much for a fee, there is no rational basis for
the fee, or where the fee somehow violates interstate commerce.
See Ingels v. Morf, 57 S.Ct. 439 (1937), and Checker Cab Co. v.
Romulus, 123 N.W.2d 772, 371 Mich. 232 (1963). Furthermore, there
is no case addressing the issue of whether a state may waive the
fee for organ donors.
A foreseeable constitutional argument might be made by a
person whose religion does not allow organ donation. In Quering v.
Peterson, 728 F.2d 1121 (1984), aff'd Jensen v. Quering, 472 U.S.
478 (1985), a Nebraska citizen objected on religious grounds to the
statutory requirement that driver's licenses include photographs.
The U.S. Court of Appeals for the Eighth Circuit held that the
statutory requirement placed an "unmistakable burden" on Quering's
religious beliefs and that "only those interests of the highest
order . . . can overbalance legitimate claims to the free exercise
of religion." Quering, 728 F.2d 1125-1126. It is doubtful that
the fee for a license would be considered an "unmistakable burden"
on a religious belief. Even if it were, the state's interest in
promoting organ donation might be viewed as an interest of the
"highest order", justifying the "burden." Any constitutional
challenge to the legislation would be more likely to be raised as
an equal protection argument. The legislation should withstand
such a challenge as long as the classification drawn by the statute
-- those who pay for the licenses and those who do not -- is
rationally related to a legitimate governmental purpose. See,
e.g., Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). The
promotion of organ donation should satisfy the rational basis
An additional consideration is whether the proposed statute
would create a liability risk for the state. The question is
basically whether the state would be liable for lack of informed
consent, or similarly, whether the incentive of not having to pay
licensing fees would affect the legitimacy of the donor's decision.
The informed consent issue could be addressed through a provision
in the law that would require that the individual be advised of the
consequences of the decision to become an organ donor.
Finally, depending on the final language of the statute, there
may be a conflict with the Uniform Anatomical Gift Act unless there
is a provision that would allow the donor to revoke the gift. See
Neb. Rev. Stat. §71-4806 (1996). The proposed statute should offer
the donor some means of revocation, although the legislature could
include a provision whereby an individual would pay for the license
if the gift were revoked.
The proposed statute to allow the waiver of motor vehicle
licensing fees to individuals who agree to become organ donors
would appear to be permissible and constitutional under the
Nebraska Revised Statutes and the Constitution of the United
States. Consideration should be given to free exercise of religion
and equal protection arguments in the drafting process. The
language of the statute should also provide that potential donors
be given adequate information about organ donation before they
consent to donation, and some means to revoke the donation, to
avoid possible state liability. If these issues are addressed
prior to enactment of the law, the statute should be permissible
Paul N. Potadle
Assistant Attorney General