IN THE MATTER OF EDWARD HENSHAW

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0802-06T5

IN THE MATTER OF

EDWARD HENSHAW

________________________

 

Submitted September 19, 2007 - Decided

Before Judges Payne and Sapp-Peterson.

On appeal from Final Agency Decision of the

New Jersey Motor Vehicle Commission.

Neal E. Rosenberg, attorney for appellant.

Anne Milgram, Attorney General, attorney

for respondent New Jersey Motor Vehicle Commission (Patrick DeAlmeida, Assistant Attorney General, of counsel, and Elaine C. Schwartz, Deputy Attorney General, on the brief).

PER CURIAM

Edward Henshaw appeals from a final determination of the New Jersey Motor Vehicle Commission denying Henshaw's application for renewal of his driver's license on the ground that he presented insufficient proof of identity, age or legal residency to satisfy the requirements of N.J.S.A. 39:3-10d and N.J.A.C. 13:21-8.2.

N.J.S.A. 39:3-10d provides in relevant part that:

In addition to requiring an applicant for a driver's license to submit satisfactory proof of identity and age, the commission also shall require the applicant to provide, as a condition for obtaining a permit and license, satisfactory proof that the applicant's presence in the United States is authorized under federal law.

See also N.J.S.A. 39:2A-29h (authorizing the Motor Vehicle Commission's administrator to "[i]mplement additional proofs of identity verification for a non-driver identification card, driver's license, permits, and registrations.").

Pursuant to N.J.S.A. 39:2A-29h, in 2003, the Motor Vehicle Commission adopted amendments to the identification provisions of N.J.A.C. 13:21-8.2 in "an effort to make the New Jersey driver license a more secure, more tamper-resistant document" and "to prevent people from fraudulently obtaining driver licenses." 35 N.J.R. 2946(a) (July 7, 2003)(emergency adoption). The amended regulation establishes a point-based identification verification system for persons seeking to obtain or renew a driver's license that requires documentary "proof of identity and date of birth and proof that the applicant's presence in the United States is authorized under Federal law." N.J.A.C. 13:21-8.2(a). The documents meeting the Commission's criteria, enumerated in paragraph (b) of the regulation, are divided into "primary" and "secondary" categories, and each is given a point value. In order to achieve the required point value of six, an applicant is required to produce one document from the primary category, and the remainder from the secondary category. Primary documents include a United States or United States Territory birth certificate or a United States passport (current or expired less than three years). The regulation further provides:

5. If discrepancies exist within or between documents submitted by an applicant, the Commission may require that the applicant submit additional documentation.

* * *

8. Commission authorized personnel may review, approve or accept other documentation that proves the applicant's identity and date of birth, and that the applicant's presence in the United States is authorized under Federal law.

[N.J.A.C. 13:21-8.2(a)5 and 8.]

Appellant Henshaw, who lacks either a birth certificate or a passport, was unable to meet the primary document requirement of the regulation. Pursuant to N.J.A.C. 13:21-8.2(a)8, the Commission afforded Henshaw the opportunity to present other documentation to prove his identity, date of birth, and his lawful presence in this country, and it extended the expiration date of his existing driver's license from February 28, 2006 to August 31, 2006 to permit the submission of additional materials, which occurred on July 21, 2006. However, his supplemental documentation was deemed deficient.

In a final decision of September 22, 2006, the Chief Administrator of the Motor Vehicle Commission found that Henshaw had failed to "meet the requirements for a New Jersey driver license renewal based on the documentation he has submitted thus far." The Administrator found that Henshaw had not "provided any primary documents . . . that prove at least three things: legal name, date of birth and legal presence in the United States." She also determined that the only secondary documents that the Commission could "definitely accept" were his marriage certificate, his Social Security card and his recently expired pre-digital photo driver license. However, the Commissioner found: "[T]hese documents, by themselves, are insufficient to prove identity and legal presence in the United States."

On appeal, Henshaw offers a somewhat harrowing explanation for his inability to meet the Commission's identification requirements. Henshaw claims to have been born in the United States Virgin Islands, on the island of St. Croix, on or about January 10, 1945. His mother was "itinerant." Henshaw never met his father. When Henshaw was a child, his mother allegedly departed for New York City, leaving Henshaw with relatives, who failed to care for him. As a result, Henshaw became homeless. When Henshaw was approximately ten years of age, he stowed aboard a ship to New York City, where he believed that his mother resided. However, he was never able to locate her, and for a period of time, he lived on the streets. At the approximate age of fifteen, Henshaw moved to Philadelphia; later returned to New York; and then moved to New Jersey. In the course of his moves, any documents that he might have retained regarding his past were lost or stolen.

There is thus a documentary hiatus from Henshaw's birth in 1945 to 1976. Documents supplied by Henshaw to the Commission in an effort to renew his license disclose his name on the Philadelphia Street List of Registered Voters for the 1976 general election, living at 2719 West Montgomery Avenue. Rent receipts suggest that Henshaw lived in New Brunswick at various addresses from 1982 to 1989, when he returned to Philadelphia, living at 4500 Rising Sun Avenue in 1989 to 1990 or 1991 and at 2119 East York Street commencing in 1991. In January 2002, Henshaw appears to have resided at 735 Elm Street, Camden, where he purchased real property, and in 2003, he moved to 403 Lawrence Street, Burlington, New Jersey, where he remains. Henshaw's driver's abstract indicates that he has maintained a New Jersey driver's license since, at least, 1984.

Henshaw has thus far been unable to establish the place or date of his birth. By application to the Virgin Islands Department of Health, Office of the Registrar of Vital Statistics, dated June 18, 2006, Henshaw requested a certified copy of his birth record, giving a date of birth of January 10, 1945. The application did not specify the place of birth other than to state that it was in St. Croix. The application was returned with the notation: "No record of birth on that date under that name on St. Croix."

Henshaw has claimed that, after serving as a foster parent for seven years, he was authorized by the Division of Youth and Family Services (DYFS) to adopt his foster son. The record contains a Judgment of Adoption, dated December 20, 2005, as evidence of that fact. However, the record does not disclose any documents generated by DYFS in connection with its investigation of his application for a license to serve as a resource family parent pursuant to N.J.A.C. 10:122C-2 (licensing) and N.J.A.C. 10:122C-5 (personal requirements) or his request to adopt. Information on the web site of the New Jersey Department of Children and Families states as a requirement that an adoptive parent have legally entered the United States. See http://www.state.nj.us/njfosteradopt/

adoption/faqs/ (last visited on November 6, 2007); see also N.J.A.C. 10:122C-5.3(a)iv (requiring a visa or other documentation as evidence of legal residency if the resource family parent or applicant is not a citizen of the United States).

In his brief on appeal, Henshaw claims that he was improperly denied a hearing before an Administrative Law Judge regarding his case. He also argues that the Commission's decision to deny him the right to renew his license was arbitrary, capricious and unreasonable, and that it constituted a violation of due process and equal protection. In particular, Henshaw notes the anomaly presented by his qualification, pursuant to DYFS's regulations, to become first a foster and now an adoptive parent, yet his disqualification as a New Jersey licensed driver.

The Administrative Procedure Act provides, in N.J.S.A. 52:24B-11 that:

No agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for hearing in conformity with the provisions of this act applicable to contested cases. If a licensee has, in accordance with law and agency rules, made timely and sufficient application for a renewal, his license shall not expire until his application has been finally determined by the agency.

Henshaw seeks the benefit of this statutory provision.

The Commission argues that the statute is inapplicable because there are no factual issues for resolution. See Frank v. Ivy Club, 120 N.J. 73, 98 (1990) ("It is well-established that where no disputed issues of material fact exist, an administrative agency need not hold an evidential hearing in a contested case."), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991). The Commission notes that N.J.A.C. 13:21-8.2(a) and (b) require the production of a primary document such as a birth certificate or passport to establish identity, date of birth and legal residence, and that Henshaw, concededly, has failed to produce such a document. Accordingly, it contends that a hearing is unnecessary.

In the singular circumstances of this case, we disagree, and instead require as a matter of fundamental fairness and to further effectuate the purposes of N.J.A.C. 13:21-8.2(a)(8), that an informal hearing be conducted by the Commission to determine whether Henshaw reasonably can demonstrate his identity, date of birth and legal residence by production of evidence other than that specified in governing regulations. Cunningham v. Dept. of Civil Service, 69 N.J. 13, 24-26 (1975); see also 37 New Jersey Practice, Administrative Law and Practice, 1.16 at 28 and 4.8 at 185-90 (Steven L. Lefelt, et al.)(2000). We base our conclusion in this matter upon several considerations.

New Jersey's identification requirements are paralleled by those enacted by Congress pursuant to the Real ID Act, which was signed into law by President Bush on May 11, 2005. Pub. L. 109-13, Div. B, Title II, 201 to -07 (2005) (amending 18 U.S.C.A. 1028 and repealing Pub. L. 108-458, 7212) (codified at 49 U.S.C.A. 30301 note). In provisions titled "Improved Security for Drivers' License and Personal Identification Cards," the Act established minimum document requirements and issuance standards for federal recognition of state driver's licenses, providing in Section 202 that after a specified date, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section." We assume for purposes of this opinion that New Jersey has or will seek to align its licensing requirements with those of the Real ID Act, so as to obtain the benefits of federal recognition of State-issued driver's licenses for New Jersey residents. In fact, the identification requirements promulgated in New Jersey in 2003 are remarkably similar to those that have been proposed pursuant to the Real ID Act.

As the legislative history of the Act demonstrates, its passage was impelled by the attacks of September 11, 2001 and by a recognition that those involved in the attacks had obtained driver's licenses under existing procedures. Texas Representative Peter Sessions made this point at the commencement of debate in the House:

Mr. Speaker, we are here today to begin the debate on fulfilling Congress's promise to the American people made in the wake of the tragedy of September 11, 2001, that our government will do everything it can to protect them from another deadly attack on our homeland. This promise was made in the days immediately following September 11 when President Bush committed to the American people that the full force of American power would be used to bring terrorists and their sponsors to justice.

This promise was continued by the efforts of the September 11 Commission and the subsequent efforts of Congress to study the frailties and oversights of our national security system that the 9/11 terrorists were able to identify, exploit and use against us. And this promise will continue again today through the consideration of the Real ID Act of 2005 . . . .

This legislation continues the reform mission begun by Congress in the 9/11 Recommendations Implementation Act.

* * *

Implementing the driver's license reforms included in H.R. 418 will provide greater security for the American people because lax standards and loopholes in the various current State issuance processes allow terrorists to obtain a driver's license, often multiple drivers' licenses from different States, and abuse these fake identities for illegal and harmful purposes. The September 11 hijackers had within their [possession] at least 15 valid driver's licenses and numerous State-issued identification cards listing a wide variety of addresses.

[151 Cong. Rec. H437, H442 (daily ed. February 9, 2005)].

See also, e.g., id. at H443 (statement of Rep. Royce); H444 (statement of Rep. Blunt); H446 (statement of Rep. Shadegg); and H448 (statement of Rep. Gingrey).

A similar rationale appears as one of the reasons for promulgation of N.J.A.C. 13:21-8.2. In response to public comments addressed to the amendment of that regulation, the Commission stated that it "believes that the proposed amendment will help to make our State safer and will help prevent terrorists from obtaining driver licenses or identification cards." 35 N.J.R. 4299(a) (September 15, 2003). The record suggests that this purpose will not be undercut as the result of the utilization of N.J.A.C. 13:21-8.2(a)(8) to facilitate the renewal of Henshaw's driver's license, as there is no evidence that in any respect links him to terrorists or terrorism.

Proposed administrative regulations implementing the Real ID Act and establishing an identification process through a two-tiered production of primary and secondary documents were promulgated by the Department of Homeland Security on March 9, 2007. See 72 Fed. Reg. at 10820-58 (March 9, 2007). Those proposed regulations also establish a process by which states can demonstrate compliance with the requirements of the Act, thereby assuring their citizens of federal recognition of the citizens' state driver's licenses. In recognition that compliance with specific documentation requirements may, in certain instances, be difficult or impossible, in a background section preceding the proposed regulations, the Department stated:

The detailed requirements of the Act, particularly requirements for original documents and proof of principal residence, also raised State concerns that individuals, through no fault of their own, might not be able to meet certain requirements of the Act. The States advocated for an exceptions process to accommodate certain circumstances (victims of natural disasters such as Hurricanes Katrina and Rita who no longer have certain documents, or elderly individuals with no birth certificate, for example). We understand those concerns and therefore propose that the States adopt an exception process in their Departments of Motor Vehicles (DMVs) that will be monitored by the State and included as part of the State's certification process to DHS. This exception process would include any difficulties arising from attempts to verify birth information for individuals born before 1935, who, due to various considerations, may not have been issued birth certificates.

[Id. at 10822.]

In a later section discussing the verification of identity information through production of a certified copy of a birth certificate, the Department again recognized the inability of some to produce the required documentation. It stated in this regard: "Such cases should not preclude persons from obtaining a Real ID driver's license or identification card, but should be handled according to the State's exceptions process." Id. at 10831-32. See also id. at 10834, "F. Exceptions Processing for Extraordinary Circumstances" (recognizing that in the case of a homeless person or another who has lost all documentation in a natural disaster "there may be extraordinary circumstances where the required documents verifying an applicant's identity, date of birth, SSN, principal address or lawful status may be unavailable.").

Thus, a recognition exists both under State and federal law that in certain exceptional circumstances an applicant for license renewal will not be able to comply with standard requirements for production of documents establishing identity, age and citizenship, and that in such circumstances, alternative proofs will be permitted.

Additionally, commentators have acknowledged the signal importance of driver's licenses in our present society. As stated by Rep. Hart at the time of the Real ID Act's consideration by Congress:

Driver's licenses have become the primary identification document in the United States, enabling individuals to get other identity documents, transfer funds to a U.S. bank account, obtain access to federal buildings and other vulnerable facilities, purchase a firearm, rent a car and board a plane.

[151 Cong. Rec. at H453.]

In response to comments to proposed amendments to N.J.A.C. 13:21-8.2, the New Jersey Motor Vehicle Commission has likewise acknowledged that driver's licenses, as well as authorizing persons to operate motor vehicles, have become "premier identification documents" and are "a form of identification that is widely accepted in our society." 35 N.J.R. 4299(a) (September 15, 2003).

The summary of public comments regarding the adoption of new identifying regulations in New Jersey include the following statement:

The six point identification verification system, which seems flexible at first glance, is in fact inflexible. It could create an ID gridlock. For example, immigrants might not be able to obtain the supporting documentation to meet the six points and would be locked out of the system. Even a United States citizen with an old non-photo driver license, no access to a birth certificate, and no passport or an expired passport would have difficulty meeting the six points. Persons who are homeless or live in shelters may not have access to the necessary documents and would be locked out of obtaining even a non-driver identification card. The system makes no provisions for such special cases.

[Id.]

In response, the Commission argued that its six-point system was in fact "flexible" and that "[p]rovisions are available for special cases."

In our view, the present application, pursued by a long-time New Jersey resident who, despite a lack of childhood family support, a limited education, and a penurious and perilous past, has nonetheless established himself as a property owner worthy of a license as a resource family parent and the right to adopt, presents such a special case. While we recognize both the importance of proper identification and the likely need for this State to comply with the Real ID Act's provisions, we conclude that fairness requires in this case that the Commission implement its promise of flexibility, and that it conduct an informal hearing with the goal of maximizing Henshaw's opportunity for renewal of his license.

 
The matter is remanded to the Motor Vehicle Commission for further proceedings in accordance with this opinion.

Henshaw's recitation of his circumstances is not embodied in an affidavit or any other form of sworn statement.

The application permitted, as an alternative to the date of birth, that Henshaw specify the period to be searched. It is possible that such a search would be more fruitful.

Henshaw's mother is variously named in documents supplied by Henshaw as Mary White and Mary Brown; his father, as Brown Henshaw, Edward Brown, and Eddie Henshaw.

The record also contains documents suggesting that Henshaw may have been born in New York. Both his Certificate of Baptism, dated January 10, 1980, and his marriage license, dated April 17, 1992, list Henshaw's place of birth as New York. Additionally, Henshaw applied to the New York City Department of Health for delayed registration of birth, indicating a New York City birthplace. The registration was not accepted, there being no evidence in the records of births for the City for the calendar years 1944 to 1946 of a child named Edward Henshaw. The alternative designation of New York as the place of birth is not explained.

The Commission also contends that this case fits within the statutory exception to the hearing requirement, set forth in the second paragraph of N.J.S.A. 52:14B-11, which provides: "This section shall not apply . . . (2) where the agency is required by any law to revoke, suspend or refuse to renew a license, as the case may be, without exercising any discretion in the matter, on the basis of a judgment of a court of competent jurisdiction." But in this case, no judgment has issued. The exception is therefore inapplicable.

As had Congress, when promulgating proposed regulations to implement the Act, the Department of Homeland Security recognized: "The primary benefit of Real ID is to improve the security and lessen the vulnerability of federal buildings, nuclear facilities, and aircraft to terrorist attack." 72 Fed. Reg. No. 46 at 10845.

(continued)

(continued)

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A-0802-06T5

November 15, 2007