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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
Opinion 98002

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




ANSWER:




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

informed consent.




Discussion




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

requirement.




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. ยง71-4806 (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.




Conclusion




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

and constitutional.




Sincerely,




DON STENBERG

Attorney General




Paul N. Potadle

Assistant Attorney General