Petition for Writ of Certiorari — Wisconsin Department of Transportation v. Reno
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Supreme Court, Ug.
FILED
WV 9 8 1818 MAY 1 11999
No.
In The
Supreme Court of the United States
October Term, 1998
*
THE DIVISION OF MOTOR VEHICLES OF THE WISCONSIN
DEPARTMENT OF TRANSPORTATION AND ITS
ADMINISTRATOR,
Petitioners,
Vv.
JANET RENO, ATTORNEY GENERAL OF THE UNITED
STATES, AND THE UNITED STATES OF AMERICA,
Respondents.
a
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
4
PETITION FOR WRIT OF CERTIORARI
+
JAMES E. DOYLE
Attorney General
SUSAN K. ULLMAN*
Assistant Attorney General
State Bar #1012889
Attorneys for Petitioners
_ Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 267-2775
*Counsel of Record
—$—$—$——<——_
QUESTION PRESENTED
Whether Congress’ enactment of the Driver's Privacy
Protection Act of 1994, 18 U.S.C. §§ 2721-2725, violates the
Tenth Amendment to the United States Constitution.
LIST OF PARTIES
Actual parties to the proceedings in the Court of
Appeals were:
Roger D. Cross, in his capacity as Administrator of the
Division of Motor Vehicles of the Wisconsin Department of
Transportation, and the Division of Motor Vehicles of the
Wisconsin Department of Transportation,
Petitioners herein,
State Representative David M. Travis, State Senator Fred
Risser, State Representative Robert K. Zukowski, State
Representative Eugene Hahn, State Representative Michael
D. Huebsch, David Zweifel and Pamela Moorshead,
Plaintiffs-Appellees in the United
States Court of Appeals for the
Seventh Circuit
Janet Reno, Attorney General of the United States, and the
United States of America,
Respondents herein.
TABLE OF CONTENTS
Page
TOT ELT i
a A al A I il
EI ES a TE 2
SETS ROAD OO ER ae oO 2
CONSTITUTIONAL AND STATUTORY
a NT OI, WEEP o, -sscvesssvverensssapereteccacerencccotcncccss. 2
See I RUE CO ni cocecocevevencencsesencudsccbaseccecti. 3
A. Statutory Background............0.c..c:c006. 3
B. Procedural Background ...................... 4
REASONS FOR GRANTING THE WRIT ........ccccccccceccceseees 7
I. THE DECISION OF THE COURT
OF APPEALS CONFLICTS WITH
THE DECISIONS FROM OTHER
NC laiiiiabas cial doe ssis cideiicencibanondssecovendeeness 7
THIS CASE PRESENTS AN
IMPORTANT CONSTITUTIONAL
I is 8
CER PIT snisiciicscciscsintivtinicinnniued tctianinasictaliadihiigienssniianiateteidln 13
CASES
Condon vy. Reno,
155 F.3d 453 (CA4 1998),
petition for cert. filed, (U.S. Mar. 15, 1999)
Si TE sieiniictnscitceincecieciabseinbahonctilaenicdiamiinpaniniien 2, 7,8
National League of Cities v. Usery,
ee a TR inissidcnctesniincinintinaenbiiitiastiaiiiiinatianiages 5
New York v. U.S.,
Fee Es CO De wiseciviictticstctenrivncinatas 5, 6,9, 11, 12
Printz v. U.S.,
521 U.S. 898,
yg Be Bes 2). ) : ne naeomnnn ee 5,9, 10, 11, 12
Pryor, et al. v. Reno,
ee hee
Se Wks BO FRe CTRL, BOF e Picscccsnscensntiestvscivonsee 7,8
South Carolina v. Baker,
gt ef Lee
Vv
State of Oklahoma ex rel. Oklahoma
Dep't of Public Safety v. United States,
161 F.3d 1266 (CA10 1998),
petition for cert. filed, (U.S. May 3, 1999)
Pe iil 2,7,8
Travis v. Reno,
12 F. Supp. 2d 921 (W.D. Wis. | 2, 4, 6,9
Travis v. Reno,
163 F.3d 1000 (CA7 1998)... eccccccccececcececeec... passim
FEDERAL STATUTES
Driver's Privacy Protection Act of 1994,
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Wis. Stat.
WISCONSIN STATUTES
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OTHER AUTHORITIES
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No.
-_—_—_
In The
Supreme Court of the United States
October Term, 1998
¢
THE DIVISION OF MOTOR VEHICLES OF THE
WISCONSIN DEPARTMENT OF TRANSPORTATION
AND ITS ADMINISTRATOR,
Petitioners,
V.
JANET RENO, ATTORNEY GENERAL OF THE UNITED
STATES, AND THE UNITED STATES OF AMERICA,
Respondents.
+
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
+
PETITION FOR WRIT OF CERTIORARI
+
Petitioners, the Division of Motor Vehicles of the
Wisconsin Department of Transportation and its
Administrator, respectfully pray that a writ of certiorari issue
to review the judgment of the United States Court of Appeals
for the Seventh Circuit entered on December 16, 1998, that
the Driver's Privacy Protection Act of 1994, 18 U.S.C.
§§ 2721-2725, does not violate the Tenth Amendment.
2
This petition presents the same question raised in the
petition filed on March 15, 1999 in Reno, et al. v. Condon,
No. 98-1464, and the petition filed on May 3, 1999, in
Oklahoma ex rel. Oklahoma Dep't of Public Safety v. United
States, No. 98-1760.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Seventh Circuit is reported at 163 F.3d 1000 (CA7 1998)
(Pet.-Ap. 9a-24a). The opinion of the United States District
Court for the Western District of Wisconsin is reported at 12
F. Supp. 2d 921 (W.D. Wis. 1998) (Pet.-Ap. 27a-46a).
JURISDICTION
The judgment of the United States Court of Appeals
for the Seventh Circuit was entered on December 16, 1998.
Petitioners filed a timely Petition for Rehearing With
Suggestion of Rehearing En Banc which was denied by
Order dated February 11, 1999 (Pet.-Ap. 7a-8a). The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Tenth Amendment to the United States
Constitution provides: "[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people."
U.S. Const. amend. X.
The Driver's Privacy Protection Act of 1994, 18
U.S.C. §§ 2721-2725 is reprinted in full in the Appendix
(Pet.-Ap. la-6a).
STATEMENT OF THE CASE
A. Statutory Background
This case involves a constitutional challenge under the
Tenth Amendment to the Driver's Privacy Protection Act of
1994 ("DPPA"), 18 U.S.C. §§ 2721-2775. The Driver's
Privacy Protection Act is a detailed federal scheme prohibiting
the disclosure and use of certain State motor vehicle records,
except for enumerated purposes. The DPPA defines "personal
information." See 18 U.S.C. § 2725(3). The DPPA mandates
disclosure of that "personal information" by a "State
department of motor vehicles" in sore circumstances (see 18
U.S.C. §2721(b)), prohibits it in others (see 18 U.S.C.
§ 2721(a)) and permits it in yet others (see 18 U.S.C.
§ 2721(b)(1)-(14)).
Compliance with the DPPA requires that for each
request to a State department of motor vehicles for information
a State employee must make a determination of whether the
requested information is "personal" under the DPPA. If the
information is not "personal," then the State employee may.
release the information. If the State employee determines the
requested information is "personal," he must determine
whether it is subject to mandatory disclosure, permissive
disclosure, or may never be disclosed under the federal DPPA.
Compliance with the DPPA is not voluntary; the
DPPA compels State departments of motor vehicles to
administer the federal program by having substantial criminal
fine and civil penalty provisions. Petitioner Wisconsin
Division of Motor Vehicles faces a civil penalty of up to
$5,000 per day for "substantial noncompliance" with the
DPPA. 18 U.S.C. § 2723(b). Petitioner Roger D. Cross, the
Administrator of the Division of Motor Vehicles, and all
employees of that Division, face individual criminal fines
4
and civil damage suits if they release information that should
not have: been released under the DPPA. 18 U.S.C.
§§ 2723(a) and 2724(a).
The DPPA's prohibitions on disclosure conflict with
Wisconsin's public records law. In Wisconsin motor vehicle
registration information is a public record under Wis. Stat.
§§ 19.35(1)(a) and 341.17(6). Driver license information is a
public record under Wis. Stat. §§ 19.35(1)(a) and 343.24(1)
and (2m).
The record is undisputed that petitioners had to make
significant changes in how the Wisconsin Division of Motor
Vehicles conducted its business as a result of compliance
with the DPPA. The Wisconsin Division of Motor Vehicles
has incurred large burdens and costs as a result of compliance
with the DPPA. See generally, R. 24, Schwartz Aff., Wehrle
Aff., Thiel Aff.; 12 F. Supp. 2d at 923 (Pet.-Ap. 30a).
B. Procedural Background
1. This case involves a constitutional challenge to the
Driver's Privacy Protection Act brought by five members of
the Wisconsin Legislature, an editor of a Wisconsin
newspaper whose job requires access to records of the
Wisconsin Division of Motor Vehicles and an attorney in
Wisconsin whose practice focuses on criminal and traffic
defense and requires her to have access to records of the
Wisconsin Division of Motor Vehicles. Petitioners herein,
the Division of Motor Vehicles of the Wisconsin Department
of Transportation and its Administrator, Roger D. Cross,
were named as defendants in the district court action, along
with the United States of America and Janet Reno
(respondents herein). Petitioners moved to be realigned as
plaintiffs. The district court granted the motion for
realignment. Respondents moved to dismiss the action and
petitioners moved for summary judgment. The district court
5
granted petitioners' motion for summary judgment and
enjoined the enforcement of the DPPA on the grounds that
the DPPA violates the Tenth Amendment and is not saved by
§ 5 of the Fourteenth Amendment. The Seventh Circuit
Court of Appeals reversed, and denied petitioners' motion for
a stay of mandate. By Order dated March 31, 1999,
Associate Justice of the Supreme Court of the United States
John Paul Stevens granted petitioners’ application to recall
and stay the mandate of the Seventh Circuit pending the
filing and disposition of this petition for a writ of certiorari
(No. A-795).
2. The district court held that the DPPA violates the
Tenth Amendment. The district court discussed this Court's
decisions in New York v. U.S., 505 U.S. 144 (1992), and
Printz v. U.S., 521 U.S. 898, 117 S. Ct. 2365 (1997), noting
this Court's determination that federal laws that direct state
officials to administer or enforce federal regulatory programs
violate the Tenth Amendment. The district court found that
the DPPA is not a law of general applicability comparable to
those upheld in cases such as National League of Cities vy.
Usery, 426 U.S. 833 (1976), and South Carolina v. Baker,
485 U.S. 505 (1988). —
After careful analysis the district court concluded that
the DPPA violates the Tenth Amendment because it forces
state officials to administer and enforce a federally enacted
regulatory program:
The act establishes a detailed set of rules to
control the circumstances under which
Wisconsin may disclose certain information in
its driver's license and motor vehicle records to
third parties; these rules displace conflicting
policies regarding disclosure established by
Wisconsin legislators through the state's open
records law; state officials are responsible for
insuring that this information is disclosed only
6
for designated purposes specified by the federal
rules; and the federal government has no role in
this process, financially or otherwise. If this
does not describe a federal law that directs state
officials to administer or enforce a federal
regulatory program, the standard articulated by
the Supreme Court in New York and Printz has
done great damage to the English language.
12 F. Supp. 2d at 928 (Pet.-Ap. 40a).
3. The Seventh Circuit reversed. The Seventh
Circuit's decision itself acknowledged that "each side to this
controversy can take comfort from the decisions of the
Supreme Court" but went on to overturn the decision of the
district court. 163 F.3d at 1001 (Pet.-Ap. 10a). The Court of
Appeals found that the DPPA was within Congress’
commerce power and _ consistent with constitutional
principles of federalism. The Seventh Circuit wrote that the
“basic distinction” between cases such as South Carolina vy.
Baker and New York, “is that states and private parties may be
the objects of regulation, although states cannot be compelled
to become regulators of private conduct.” 163 F.3d at 1004
(Pet.-Ap. 14a). The Seventh Circuit’s decision relies on
creating the distinction that the DPPA "affects states as owners
of databases; it does not affect them in their role as
governments.” /d.; see also id. at 1004-05. However, there is
no authority for this “distinction,” and the Court of Appeals
cited none. Furthermore, the Seventh Circuit reasoned that the
DPPA was in fact a law of general applicability because other
federal acts (such as the Video Privacy Protection Act, the
Bank Secrecy Act and the Stored Wire and Electronic
Communications and Transactional Records Access Act)
regulate the disclosure of similar information from other
databases. 163 F.3d at 1004-05 (Pet.-Ap. 14a-19a).
7
REASONS FOR GRANTING THE WRIT
The Court of Appeals itself recognized that the
circuits are split on the issue raised in this petition, whether
the Driver's Privacy Protection Act is constitutional. 163
F.3d at 1001 (Pet.-Ap. 10a), petition for cert. pending, No.
98-1760 (filed May 3, 1999). The Seventh Circuit and the
Tenth Circuit upheld the DPPA. See State of Oklahoma ex
rel. Oklahoma Dep't of Public Safety v. United States, 161
F.3d 1266 (CA10 1998). The Fourth and Eleventh Circuits
found the DPPA to be unconstitutional. See Condon v. Reno,
155 F.3d 453 (CA4 1998), petition for cert. pending, No.
98-1464 (filed Mar. 15, 1999); Pryor, et al. v. Reno, _ F.3d
___, 1999 WL 187050 (CA11 1999).
This case is also of great national importance. The
DPPA requires every State's department of motor vehicles to
comply with Congress' directives on when a State department
of motor vehicles must release information in its records, may
release information in its records or is prohibited from
releasing information in its records. This issue affects every
State in the nation. The Seventh Circuit's resolution on the
question of whether the DPPA is constitutional addressed
broader federalism issues potentially applicable to numerous
other laws, which makes the case one of even more national
importance.
I. THE DECISION OF THE COURT
OF APPEALS CONFLICTS WITH
THE DECISIONS FROM OTHER
CIRCUITS.
Four circuits have explicitly addressed the question
raised in this petition, whether the Driver's Privacy Protection
Act violates the Tenth Amendment. Two circuits have
upheld the DPPA. See Travis v. Reno, 163 F.3d 1000
(CA7 1998) (Pet.-Ap. 9a), and State of Oklahoma ex rel.
Oklahoma Dep't of Public Safety v. United States, 161 F.3d
8
1266 (CA10 1998). Two circuits have found the DPPA to be
unconstitutional. See Condon v. Reno, 155 F.3d 453 (CA4
1998), and Pryor, et al. v. Reno, — F.3d _, 1999 WL
187050 (CAI1 1999).
The Seventh Circuit Court of Appeals specifically
noted that its decision was consistent with that of the Tenth
Circuit, but conflicted with that of the Fourth Circuit. 163
F.3d at 1001 (Pet.-Ap. 10a). Four months after the Seventh
Circuit's decision, the split in the circuits was deepened by
the Eleventh Circuit's determination that the DPPA is
unconstitutional. See Pryor v. Reno.
This issue that has split the circuits is ready for this
Court's resolution.
II. THIS CASE PRESENTS’ AN
IMPORTANT CONSTITUTIONAL
QUESTION.
This case involves a_ significant question of
constitutional law concerning the limitations on Congress’
power to require States to implement and administer a federal
regulatory program. The issue raises the interest of States in
protecting their sovereignty and their ability to remain
responsive and accountable to their citizens. In petitioning
for certiorari in Reno v. Condon, the respondents here have
effectively supported petitioners’ position that this petition
raises an issue of national importance.
In enacting the DPPA Congress has effectively
required State departments of motor vehicles and State
officers to implement the DPPA by applying it to requests for
information from State departments of motor vehicles and
authorizing penalties for non-compliance. Under Congress’
directive, a State employee determines whether the requested
information is "personal" under the DPPA, and if so, who
must, may or may not receive the requested information
|
9
under the DPPA. See 18 U.S.C. §§ 2721(a) and (b) and
2725(3). The DPPA undermines the State of Wisconsin's
legislation on the use of records created and maintained by
the State, which are public documents pursuant to Wisconsin
statute. See Wis. Stat. §§ 19.35(1)(a), 341.17(6) and
343.24(1) and (2m). The Wisconsin Department of
Transportation, like State departments of motor vehicles
across the country, has had to change its practices with
respect to information requests to comply with the DPPA,
and has had to go against the State of Wisconsin's policies
and practices of open, public governmental records. See
generally, R. 24, Schwartz Aff., Wehrle Aff., Thiel Aff.; 12
F. Supp. 2d at 923 (Pet.-Ap. 30a).
Furthermore, the Court of Appeals’ resolution of the
issue of the constitutionality of the DPPA in this particular
case addressed broader federalism issues potentially
applicable to numerous other laws. New York and Printz
ensured (laws of general applicability aside) that the federal
government may not mandate that States legislate or
administer federal programs. The Seventh Circuit's decision
creates a gaping hole in that principle and warrants review by
this Court.
In New York, this Court struck down the "take title”
provision of the Low-Level Radioactive Waste Policy
Amendments Act of 1995, which offered States the choice of
accepting ownership of waste or regulating according to
Congress’ instructions, on the grounds that it violated the Tenth
Amendment. This Court held that the flaw in the provision
was that "[a] State may not decline to administer the federal
program. No matter which path the State chooses, it must
follow the direction of Congress." Jd at 177. The Seventh
Circuit misapprehended the precedent of New York when it
upheld the DPPA despite its own admission that “[iJn order to
comply with the Act the Division of Motor Vehicles must
adopt new rules by regulation or legislation.” 163 F.3d at 1003
(Pet.-Ap. 14a).
10
The issue before this Court in Printz was whether the
Tenth Amendment was violated by interim provisions of the
Brady Handgun Violence Prevention Act that required a chief
law enforcement officer (CLEO) of a handgun transferee's
residence to run a background check to determine whether the
possession of the gun would violate the law. This Court
described the Brady Act as "purport[ing] to direct state law
enforcement officers to participate, albeit only temporarily, in
the administration of a federally enacted regulatory scheme."
117 S. Ct. at 2369. This Court noted that "the Federal
Government may not compel the States to implement, by
legislation or executive action, federal regulatory programs."
Id. at 2380. This Court wrote:
By forcing state governments to absorb the
financial burden of implementing a federal
regulatory program, Members of Congress can —
take credit for "solving" problems without
having to ask their constituents to pay for the
solutions with higher federal taxes. And even
when the States are not forced to absorb the
costs of implementing a federal program, they
are still put in the position of taking the blame
for its burdensomeness and for its defects. ... .
Under the present law, for example, it will be
the CLEO and not some federal official who
stands between the gun purchaser and
immediate possession of his gun. And it will
likely be the CLEO, not some federal official,
who will be blamed for any error . . . that causes
a purchaser to be mistakenly rejected.
Id. at 2382.
The scenario established by the DPPA is parallel to the
one struck down in Printz. The Seventh Circuit itself admits:
“Moreover, the Act compels employees of the Division of
Motor Vehicles to take certain actions in response to requests
a
1]
for information and pay penalties if they fail.” 163 F.3d at
1003 (Pet.-Ap. 14a). State employees must determine whether
requested information is "personal" under the DPPA. If it is
personal information the State employees must then determine
whether the DPPA prohibits disclosure of that information,
mandates disclosure of that information or permits disclosure
of that information, and then take the appropriate action. As
with the CLEO in Printz who faced the blame if the wrong
person was permitted to purchase a handgun, it is the
Wisconsin Department of Transportation that has faced a loss
of goodwill from the public it serves as a result of the new
measures put into place to comply with the DPPA.
The Seventh Circuit stated that the “basic distinction”
between cases such as South Carolina v. Baker and New York,
“is that states and private parties may be the objects of
regulation, although states cannot be compelled to become
regulators of private conduct.” 163 F.3d at 1004 (Pet.-Ap.
14a). But the Seventh Circuit failed to understand how the
DPPA is requiring States to regulate disclosure and not merely
to be passive objects of regulation. The Seventh Circuit's
decision relies on creating the distinction that “[t]he Driver’s
Privacy Protection Act affects states as owners of databases; it
does not affect them in their role as governments.” Jd; see
also id. at 1004-05. The Seventh Circuit cites no authority for
this “distinction” that it views as determinative. The Seventh
Circuit's view of the Wisconsin Department of Transportation
as a ‘market participant’ that “owns” a database is also off the
mark. The Wisconsin Department of Transportation is a
regulator of driving in the State, and therefore creates a
database of that information. The Wisconsin Department of
Transportation does charge a fee for producing requested
materials pursuant to State law, however, it is not engaged in
the business of buying and selling databases. Certainly
whether the DPPA is constitutional could not turn on whether a
State charges a fee to those who request information the State
collects. Moreover, there is no real distinction between what
the Wisconsin Department of Transportation is doing and what
12
the State law enforcement officer was doing in Printz. The
CLEO was being required to research the State and local
government's record-keeping systems to determine whether the
firearms transaction would be unlawful, but he was not
required to take any governmental or enforcement action. See
Printz, 117 S. Ct. at 2369. Likewise here, an employee of the
Wisconsin Division of Motor Vehicles is required to research
each request for information and to determine whether the
disclosure is lawful or not under the DPPA.
The Seventh Circuit wrote that in South Carolina v.
Baker, this Court "sustained a statute that was addressed
exclusively to the states" and relied heavily on that case.
Travis v. Reno, 163 F.3d at 1005 (Pet.-Ap. 19a). However,
in South Carolina v. Baker this Court itself noted that the
challenged law was one of general applicability. 485 U.S. at
526-27 (provisions apply to all publicly offered long-term
bonds). In New York and Printz this Court expressly
distinguished South Carolina v. Baker on the grounds that it
and other such cases addressed laws that were (or were
conceded to be) of general applicability. See New York, 505
U.S. at 160; Printz, 117 S. Ct. at 2383. The DPPA is
regulating the way in which Wisconsin disseminates
information collected by its Department of Transportation, it is
not a law of general applicability regulating “personal
information” anywhere the State or private entities may have it.
The significant question of constitutional law this
case presents is ready for resolution by this Court.
13
CONCLUSION
For the above reasons, the petition for a writ of
certiorari should be granted.
JAMES E. DOYLE
Attorney General
SUSAN K. ULLMAN*
Assistant Attorney General
State Bar #1012889
Attorneys for Petitioners
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 267-2775
*Counsel of Record
May 1999
No.
——
In The
Supreme Court of the United States
October Term, 1998
e
THE DIVISION OF MOTOR VEHICLES OF THE
WISCONSIN DEPARTMENT OF TRANSPORTATION
AND ITS ADMINISTRATOR,
Petitioners,
Vv.
JANET RENO, ATTORNEY GENERAL OF THE UNITED
STATES, AND THE UNITED STATES OF AMERICA,
Respondents.
S
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
°
APPENDIX FOR WRIT OF CERTIORARI
a a»
APPENDIX
Table of Contents
Item
a
Driver's Privacy Protection Act of 1994
Fae ie GF BOR UAE TAD costsnstdectaiesheciceiececoctnecees,
Travis v. Reno
No. 98-2881
Order Denying Petition for Rehearing
rae Oe ee ie
Travis v. Reno
No. 98-2881, 163 F.3d 1000
Decision (7th Cir., Dec. 16, ia ae
Travis v. Reno,
Judgment in a Civil Case
COPE, Wiig SUID BE, TIMID ccsccovercciovesesse scscccoeseses
Travis v. Reno
Opinion and Order, 12 F. Supp. 2d 921
(W.D. Wis., Jun. 9, 1998)... .ccccccscscscsssssesecceesees
Nee eerie 25a
-la-
CHAPTER 123-PROHIBITION ON RELEASE
AND USE OF CERTAIN PERSONAL
INFORMATION FROM
STATE MOTOR VEHICLE RECORDS
§ 2721. Prohibition on release and use of certain
personal information from State motor
vehicle records
(a) In general.—Except as provided in subsection
(b), a State department of motor vehicles, and any officer,
employee, or contractor, thereof, shall not knowingly
disclose or otherwise make available to any person or entity
personal information about any individual obtained by the
department in connection with a motor vehicle record.
(b) Permissible uses.—Personal information referred
to in subsection (a) shall be disclosed for use in connection
with matters of motor vehicle or driver safety and theft,
motor vehicle emissions, motor vehicle product alterations,
recalls, or advisories, performance monitoring of motor
vehicles and dealers by motor vehicle manufacturers, and
removal of non-owner records from the original owner
records of motor vehicle manufacturers to carry out the
purposes of titles I and IV of the Anti Car Theft Act of 1992;
the Automobile Information Disclosure Act (15 U.S.C. 1231
et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and
chapters 301, 305, and 321-331 of title 49, and may be
disclosed as follows:
(1) For use by any government agency, including any
court or law enforcement agency, in carrying out its
functions, or any private person or entity acting on behalf of
a Federal, State, or local agency in carrying out its functions.
(2) For use in connection with matters of motor
vehicle or driver safety and theft; motor vehicle emissions;
-2a-
motor vehicle product alterations, recalls, or advisories;
performance monitoring of motor vehicles, motor vehicle
parts and dealers; motor vehicle market research activities,
including survey research; and removal of non-owner records
from the original owner records of motor vehicle
manufacturers.
(3) For use in the normal course of business by a
legitimate business or its agents, employees, or contractors,
but only—
(A) to verify the accuracy of personal information
submitted by the individual to the business or its agents,
employees, or contractors; and
(B) if such information as so submitted is not
correct or is no longer correct, to obtain the correct
information, but only for the purposes of preventing fraud by,
pursuing legal remedies against, or recovering on a debt or
security interest against, the individual.
(4) For use in connection with any civil, criminal,
administrative, or arbitral proceeding in any Federal, State, or
local court or agency or before any self-regulatory body,
including the service of process, investigation in anticipation
of litigation, and the execution or enforcement of judgments
and orders, or pursuant to an order of a Federal, State, or
local court.
(5) For use in research activities, and for use in
producing statistical reports, so long as the personal
information is not published, redisclosed, or used to contact
individuals.
(6) For use by any insurer or insurance support
organization, or by a self-insured entity, or its agents,
employees, or contractors, in connection with claims
-3a-
investigation activities, antifraud activities, rating or
underwriting.
(7) For use in providing notice to the owners of towed
or impounded vehicles.
(8) For use by any licensed private investigative
agency or licensed security service for any purpose permitted
under this subsection.
(9) For use by an employer or its agent or insurer to
obtain or verify information relating to a holder of a
commercial driver's license that is required under chapter 313
of title 49.
(10) For use in connection with the operation of
private toll transportation facilities.
(11) For any other use in response to requests for
individual motor vehicle records if the motor vehicle
department has provided in a clear and conspicuous manner
on forms for issuance or renewal of operator's permits, titles,
registrations, or identification cards, notice that personal
information collected by the department may be disclosed to
any business or person, and has provided in a clear and
conspicuous manner on such forms an opportunity to prohibit
such disclosures.
(12) For bulk distribution for surveys, marketing or
solicitations if the motor vehicle department has
implemented methods and procedures to ensure that—
(A) individuals are provided an opportunity, in a
clear and conspicuous manner, to prohibit such uses; and
(B) the information will be used, rented, or sold
solely for bulk distribution for Surveys, marketing, and
solicitations, and that surveys, marketing, and solicitations
- 4a-
will not be directed at those individuals who have requested
in a timely fashion that they not be directed at them.
(13) For use by any requester, if the requester
demonstrates it has obtained the written consent of the
individual to whom the information pertains.
(14) For any other use specifically authorized under
the law of the State that holds the record, if such use is
related to the operation of a motor vehicle or public safety.
(c) Resale or redisclosure.—An authorized recipient
of personal information (except a recipient under subsection
(b)(11) or (12)) may resell or redisclose the information only
for a use permitted under subsection (b) (but not for uses
under subsection (b)(11) or (12)). An authorized recipient
under subsection (b)(11) may resell or redisclose personal
information for any purpose. An authorized recipient under
subsection (b)(12) may resell or redisclose personal
information pursuant to subsection (b)(12). Any authorized
recipient (except a recipient under subsection (b)(11)) that
resells or rediscloses personal information covered by this
chapter must keep for a period of 5 years records identifying
each person or entity that receives information and the
permitted purpose for which the information will be used and
must make such records available to the motor vehicle
department upon request.
(d) Waiver procedures.—A State motor vehicle
department may establish and carry out procedures under
which the department or its agents, upon receiving a request
for personal information that does not fall within one of the
exceptions in subsection (b), may mail a copy of the request
to the individual about whom the information was requested,
informing such individual of the request, together with a
statement to the effect that the information will not be
released unless the individual waives such individual's right
to privacy under this section.
- 5a-
§ 2722. Additional unlawful acts
(a) Procurement for unlawful purpose.—lIt shall be
unlawful for any person knowingly to obtain or disclose
personal information, from a motor vehicle record, for any
use not permitted under section 2721(b) of this title.
(b) False representation.—It shall be unlawful for
any person to make false representation to obtain any
personal information from an individual's motor vehicle
record.
§ 2723. Penalties
(a) Criminal fine—A person who knowingly
violates this chapter shall be fined under this title.
(b) Violations by State department of motor
vehicles.—Any State department of motor vehicles that has a
policy or practice of substantial noncompliance with this
chapter shall be subject to a civil penalty imposed by the
Attorney General of not more than $5,000 a day for each day
of substantial noncompliance.
§ 2724. Civil action
(a) Cause of action.—A person who knowingly
obtains, discloses or uses personal information, from a motor
vehicle record, for a purpose not permitted under this chapter
shall be liable to the individual to whom the information
pertains, who may bring a civil action in a United States
district court.
- 6a -
(b) Remedies.—The court may award—
(1) actual damages, but not less than liquidated
damages in the amount of $2,500;
(2) punitive damages upon proof of willful or reckless
disregard of the law;
(3) reasonable attorneys’ fees and other litigation
costs reasonably incurred; and
(4) such other preliminary and equitable relief as the
court determines to be appropriate.
§ 2725. Definitions
In this chapter—
(1) "motor vehicle record" means any record that
pertains to a motor vehicle operator's permit, motor vehicle
title, motor vehicle registration, or identification card issued
by a department of motor vehicles;
(2) "person" means an individual, organization or
entity, but does not include a State or agency thereof; and
(3) "personal information" means information that
identifies an individual, including an individual's photograph,
social security number, driver identification number, name,
address (but not the 5-digit zip code), telephone number, and
medical or disability information, but does not include
information on vehicular accidents, driving violations, and
driver's status.
- 7a-
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 11 , 1999
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
DAVID M. TRAVIS, et al., ) Appeal from the United
Plaintiffs-Appellees, ) States District Court
) for the Western
)
No. 98-2881 Vv. District of Wisconsin.
)
JANET RENO, Attorney General )
of the United States, and UNITED) No. 97-C-0701-C
STATES OF AMERICA, ) Barbara B. Crabb,
) Judge.
Defendants-Appellants. _ )
Order
Plaintiffs-appellees filed a petition for
rehearing and petition for rehearing en banc on February 1,
-8a-
1999. No judge in regular active service has requested a vote
on the petition for rehearing en banc; and all of the judges on
the panel have voted to deny rehearing. The petition for
rehearing is therefore DENIED.
- 9a -
In the
United States Court of Appeals
for the Seventh Circuit
No. 98-2881
DAVID M. TRAVIS, et al.,
Plaintiffs-Appellees,
v.
JANET RENO, Attorney General of the
United States, and UNITED STATES OF AMERICA,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 97-C-0701-C-Barbara B. Crabb, Judge.
ARGUED NOVEMBER 12, 1998-DECIDED
DECEMBER 16, 1998
Before FLAUM, EASTERBROOK, and KANNE,
Circuit Judges.
EASTERBROOK, Circuit Judge. This case poses the
question whether Congress has the power to enact the
Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-25,
which regulates disclosures of the information that states
maintain in drivers' records. The district court held that the
Act exceeds Congress’ authority under the commerce clause
(read in light of the tenth amendment) because the Act
commandeers states to do the national government's bidding.
- 10a -
12 F. Supp. 2d 921 (W. D. Wis. 1998). After the district
court released its opinion, the fourth circuit concluded that
the Act is unconstitutional because it applies exclusively to
states. Condon v. Reno, 155 F.3d 453 (4th Cir. 1998). But
the tenth circuit has disagreed and held that the Act is valid.
Oklahoma vy. Reno, 161 F.3d 1266 (10th Cir. 1998), reversing
994 F. Supp. 1358 (W. D. Okla. 1997). Accord, Pryor v.
Reno, 998 F. Supp. 1317 (M. D. Ala. 1998). Although each
side to this controversy can take comfort from decisions of
the Supreme Court, we conclude that, whatever may be said
about the Act's wisdom, it is within the commerce power and
compatible with constitutional principles of federalism. This
eliminates any need to discuss whether the Act also is within
the legislative power under §5 of the fourteenth amendment.
The Act forbids the disclosure of "personal
information about any individual obtained by the [State's]
department [of motor vehicles] in connection with a motor
vehicle record" except to the extent that the Act itself permits
or requires disclosure. 18 U.S.C. § 2721(a). Elsewhere the
Act requires disclosure for law enforcement and pollution-
control uses; forbids disclosure for commercial uses (such as
the creation of mailing lists); and makes disclosure optional
for other uses, such as research and insurance. Violations of
the Act are punishable by fines up to $5,000 per day. 18
U.S.C. § 2723. Wisconsin contends, and we must assume,
that in order to comply with the Act it must make costly
changes in the way it handles requests for access to its motor
vehicle licensing records. Moreover, because Wisconsin
formerly sold its records for use in creating mailing lists, and
for other purposes, the Act deprives the state of
approximately $8 million in annual revenue. ("Wisconsin" is
shorthand for the state's Division of Motor Vehicles and its
director, who intervened as plaintiffs after questions were
raised about the standing of the original plaintiffs. The
Division, as the regulated entity, has an Article III
-lla-
controversy with the United States, so we need not discuss
the original plaintiffs’ standing.)
A
Driving is an interstate activity, as is the mailing-list
business. Information about Wisconsin's drivers readily can
affect movement and business transactions outside that state's
borders. Wisconsin does not doubt that, but for the
principles of state sovereignty that underlie our Nation's
federal structure (and are acknowledged by the tenth and
eleventh amendments), Congress would possess power under
Art. I § 8 cl. 3 of the Constitution to enact this statute. The
interstate components are substantial in the aggregate even if
a single disclosure has but a slight effect on commerce. See
United States v. Lopez, 514 U.S. 549, 558-61, 115 S. Ct.
1624, 131 L.Ed.2d 626 (1995); Wickard v. Filburn, 317 U.S.
111, 63 S. Ct. 82, 87 L.Ed.2d 122 (1942); United States vy.
Hicks, 106 F.3d 187 (7th Cir. 1997).
Nonetheless, ever since McCulloch vy. Maryland, 17
U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), the Supreme Court
has recognized that suppositions implicit in the structure of
the Constitution limit the power of the states to tax or
regulate the national government. The intergovernmental tax
immunity doctrine that Chief Justice Marshall articulated in
McCulloch (and that the Court extended in Collector v. Day,
78 U.S. (11 Wall.) 113, 20 L.Ed.2d 122 (1871), and Pollock
v. Farmers' Loan & Trust Co., 157 U.S. 429, 15 S. Ct. 673,
39 L.Ed. 759 (1895), to federal taxation of states and their
contractors) foreclosed all taxation of a governmental body
or its instrumentalities on the ground that the power to tax is
the power to destroy, a rationale equally applicable to the
imposition of costly regulation. (It is through the power to
regulate the movement of goods in interstate commerce that
Congress has forbidden child labor, United States v. Darby,
312 U.S. 100, 61 S. Ct. 451, 85 L.Ed. 609 (1941), and for a
time prohibited lotteries. Lottery Case, 188 U.S. 321, 23 S.
- 12a-
Ct. 321, 47 L.Ed. 492 (1903).) Gradually intergovernmental
immunity turned into a rule of nondiscrimination, under
which the governmental body's protection is vicarious: one |
government may tax (or regulate) another's trading partners \
only to the extent it imposes equivalent burdens on those
who do business with private citizens. See South Carolina v.
Baker, 485 U.S. 505, 515-27, 108 S. Ct. 1355, 99 L.Ed.2d
592 (1988). Neutrality between governmental and private
spheres is a principal ground on which the Supreme Court
has held that states may be subjected to regulation when they
participate in the economic marketplace--for example, by
hiring workers covered by the Fair Labor Standards Act.
Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 105 S. Ct: 1005, 83 L.Ed.2d 1016 (1985);
Maryland v. Wirtz, 392 U.S. 183, 88 S. Ct. 2017, 20 L.Ed.2d
1020 (1968). See also South Carolina, 485 U.S. at 511-15,
108 S. Ct. 1355 (states may be required to issue bonds in
registered form); United Transportation Union v. Long
Island R.R., 455 U.S. 678, 102 S. Ct. 1349, 71 L.Ed.2d 547
(1982) (labor laws apply to state-owned railroads); Fry v.
United States, 421 U.S. 542, 95 S. Ct. 1792, 44 L.Ed.2d 363
(1975) (states are bound by generally applicable wage and
price controls). So long as public market participants are
treated the same as private ones, they enjoy the protection the
latter have been able to secure from the legislature; and as
Congress is not about to destroy private industry (think what
that would do to the tax base!) it can not hobble the states
either. National League of Cities v. Usery, 426 U.S. 833, 96
S. Ct. 2465, 49 L.Ed.2d 245 (1976), adopted a proviso to this
approach: that Congress may not disrupt the states’ ability to
manage-core governmental functions such as police and fire
protection. Garcia overruled National League of Cities after
concluding that the set of traditional or essential \
governmental functions is too indistinct to be a constitutional
norm. Even if Garcia should be overruled in turn, this
branch of analysis would do Wisconsin no good. Nothing in
the Driver's Privacy Protection Act interferes with states’
ability to license drivers and remove dangerous ones from the
- l3a-
road; it regulates external rather than internal uses of the
information.
Alongside the prohibition of discrimination against
the states is a rule that remains absolute, a genuine
"immunity." Congress may not "commandeer the legislative
processes of the States by directly compelling them to enact
and enforce a federal regulatory program." Hodel v. Virginia
Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264,
288, 101 S. Ct. 2352, 69 L.Ed.2d 1 (1981). See also Printz v.
United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L.Ed.2d
914 (1997); New York v. United States, 505 U.S. 144, 112 S.
Ct. 2408, 120 L.Ed.2d 120 (1992); FERC v. Mississippi, 456
U.S. 742, 762-66, 102 S. Ct. 2126, 72 L.Ed.2d 532 (1982).
When Congress enacted legislation requiring states to pass
laws regulating nuclear waste--and to pay the steep penalty
of taking title to all waste within their borders if they failed to
comply--the Court replied (in New York) that the national
government simply may not direct the states to use their
legislative powers to regulate private conduct. Printz adds
that the same principle applies to the federal government's
direction that a state's executive branch enforce federal rules.
Although the Constitution's supremacy clause precludes any
effort by states to divorce themselves from the application of
federal law when they choose to act, see Printz, 117 S. Ct. at
2374; FERC v. Mississippi, 456 U.S. at 759-69, 102 S. Ct.
2126; Howlett v. Rose, 496 U.S. 356, 110 S. Ct. 2430, 110
L.Ed.2d 332 (1990); Testa v. Katt, 330 U.S. 386, 67 S. Ct.
810, 91 L.Ed.2d 967 (1947); Claflin v. Houseman, 93 U.S.
130, 23 L.Ed.2d 833 (1876); Alleghany Corp. v. Haase, 896
F.2d 1046, 1053-56 (7th Cir. 1990) (concurring opinion),
vacated in part as moot, 499 U.S. 933, 111 S. Ct. 1383, 113
L.Ed.2d 441 (1991), Congress must assign the enforcement
duty to federal officials unless the Constitution itself
authorizes use of the states as agents (see Art. I §4 cl. 1;
Association of Community Organizations for Reform Now vy.
Edgar, 56 F.3d 791 (7th Cir. 1995)). When the national
government conscripts the legislative or executive arms of a
- 14a-
state, the law violates a structural immunity and "a
‘balancing’ analysis is inappropriate." Printz, 117 S. Ct. at
2383.
Wisconsin seeks to persuade us that the Act has the
same vice as the statutes condemned in Printz and New York.
In order to comply with the Act the Division of Motor
Vehicles must adopt new rules by regulation or legislation.
Moreover, the Act compels employees of the Division of
Motor Vehicles to take certain actions in response to requests
for information and pay penalties if they fail. Wisconsin's
brief observes that "the mandatory and permissible disclosure
provisions of 18 U.S.C. § 2721(b) effectively command State
departments of motor vehicles to establish a mechanism for
determining when it [sic] has a mandatory or permissive
disclosure situation". The need to establish a mechanism is
the forbidden commandeering, the argument concludes. But
if this is the same thing as the situation in Printz and New
York, then the application of the Fair Labor Standards Act to
the states likewise is unconstitutional, for the FLSA requires
states to establish record-keeping systems and to establish
mechanisms for paying employees according to a national
formula. Every federal law that affects the way states
participate in the marketplace may do the same. Yet the
basic distinction between cases such as South Carolina and
cases such as New York is that states and private parties may
be the objects of regulation, although states cannot be
compelled to become regulators of private conduct. The
Driver's Privacy Protection Act affects states as owners of
databases; it does not affect them in their role as
governments.
Congress borrowed the Act's approach from the
Video Privacy Protection Act, 18 U.S.C. § 2710. Wisconsin
conceded at oral argument that if the state operated a video
tape rental service it would be required to comply with
- |Sa-
§ 2710. But that gives away the game. Compliance with
§ 2710 requires the same kind of screening as does
compliance with § 2721. This must mean that the steps a
state agency takes to identify mandatory, discretionary, and
forbidden disclosures of information from a database in its
control is not the sort of "conscription" to which Printz and
New York refer. South Carolina makes the point in language
equally applicable to the Driver's Privacy Protection Act:
Section 310 [which requires the states to issue
bonds in registered form] regulates state
activities; it does not . . . seek to control or
influence the manner in which States regulate
private parties. The NGA _ [National
Governors’ Association] nonetheless contends
that §310 has commandeered the state
legislative and administrative process because
many state legislatures had to amend a
substantial number of statutes in order to issue
bonds in registered form and because state
officials had to devote substantial effort to
determine how best to implement a registered
bond system. Such "commandeering" is,
however, an inevitable consequence of
regulating a state activity. Any federal
regulation demands compliance. That a State
wishing to engage in certain activity must take
administrative and sometimes legislative
action to comply with federal standards
regulating that activity is a commonplace that
presents no constitutional defect. After
Garcia, for example, several States and
municipalities had to take administrative and
legislative action to alter the employment
practices or raise the funds necessary to
comply with the wage and overtime
provisions of the Federal Labor Standards
Act. Indeed, even the pre-Garcia line of
- 16a -
Tenth Amendment cases recognized that
Congress could constitutionally impose
federal requirements on States that States
could meet only by amending their statutes.
See EEOC v. Wyoming, 460 U.S. 226, 253-
254, and n.2, 103 S. Ct. 1054, 75 L.Ed.2d 18
(1983) (Burger, C.J., dissenting) (citing state
statutes from over half the States that did not
comply with the federal statute upheld by the
Court). Under the NGA's theory, moreover,
any State could immunize its activities from
federal regulation by simply codifying the
manner in which it engages in those
activities. In short, the NGA's theory of
"commandeering" would not only render
Garcia a nullity, but would also restrict
congressional regulation of state activities
even more tightly than it was restricted under
the now overruled National League of Cities
line of cases.
485 U.S. at 514-15, 108 S. Ct. 1355 (footnote omitted).
Wisconsin might respond that states did not have to issue
bonds, but that states invariably license drivers and therefore
cannot escape the federal rule by withdrawing from the
activity (as they could stay out of the video rental business).
Yet the activity under consideration is not licensing but
disclosure. Wisconsin elected to reveal (often to sell)
information from its drivers’ database; it could substantially
limit the difficulty of compliance by limiting disclosure to
the lawenforcement uses that no holder of a database (state or
private) can avoid. Ability to withdraw completely from an
activity has never been essential to federal regulation.
Issuing bonds is a way to raise money, which states must do
to operate. Likewise states must hire employees, for which
federal rules determine recordkeeping and compensation
obligations. There is just no blinking the fact that federal law
pervasively regulates states as marketplace participants; the
- 17a-
anti-commandeering rule comes into play only when the
federal government calls on the states to use their sovereign
powers as regulators of their citizens. Because the Driver's
Privacy Protection Act affects states as owners of data, rather
than as sovereigns, it does not commandeer states in
violation of the Constitution. Wisconsin is no more a
regulator or law enforcer when it decides what information to
release from its database than is the corner Blockbuster
Video outlet.
C
What persuaded the fourth circuit in Condon that the
Act exceeds Congress’ powers is a belief that the Act not
only requires states to administer a federal program but also
discriminates against them. The Driver's Privacy Protection
Act applies only to states, the fourth circuit stated, and thus
cannot be classified with neutral laws such as the FLSA that
regulate all participants in a marketplace. A state-specific
law does not provide states with the protection that private
groups have arranged for themselves; it could in principle be
a vehicle of destruction. Although the Driver's Privacy
Protection Act applies to contractors that administer a
database on a state's behalf, and to recipients of information
from a state, see 18 U.S.C. § 2721(a), (c), these efforts to
avoid loopholes do not ensure that public and private
operators of different databases experience similar costs of
compliance. For the same reason, redrafting the statute so
that it would apply to "any state or private entity that operates
a department of motor vehicles" (rather than to every "State
department of motor vehicles", as § 2721(a) does) would be
pointless; there is no equivalent private enterprise. Although
the lack of private licensing bureaus makes states a legitimate
class for legislation, cf. Nixon v. Administrator of General
Services, 433 U.S. 425, 97 S. Ct. 2777, 53 L.Ed.2d 867
(1977), it does not offer any protection from discriminatorily
severe burdens on the databases that states operate.
- 18a-
Conceding this--and implicitly conceding that a law
placing states at a disadvantage relative to similarly-situated
private entities would be unconstitutional--the United States
responds that the Act does not bear unequally on the states.
Statute books teem with laws regulating the disclosure of
information from databases. The Bank Secrecy Act specifies
what records banks must keep, and what information they
must, may, or must not disclose (see California Bankers
Ass'n v. Shultz, 416 U.S. 21, 94 S. Ct. 1494, 39 L.Ed.2d 812
(1974)); the Stored Wire and Electronic Communications and
Transactional Records Access Act, 18 U.S.C. §§ 2701-11,
deals with data maintained by phone companies; other
statutes regulate the disposition of data in the hands of cable
TV operators (47 U.S.C. § 551), hospitals, pharmacies,
universities, accountants, credit card issuers, bill collectors
(15 U.S.C. § 1618b), and so on. Professionals such as
physicians and lawyers encounter additional common-law
limitations on the disclosure of information from their files.
The national government has subjected itself to the Freedom
of Information Act, 5 U.S.C. § 552, the Privacy Act, 5 U.S.C.
§ 552a, the Government in the Sunshine Act, 5 U.S.C.
§ 552b, and the Federal Advisory Committee Act, 5 U.S.C.
App. 2 §§ 1-16, and pays penalties for improper disclosure of
tax return information, 26 U.S.C. § 7431. These statutes
adopt record-keeping and information-disclosure criteria at
least as complex, and impose a burden at least as great, as the
Driver's Privacy Protection Act. It is hard to name any
substantial collection of information yet to be regulated. At
oral argument counsel for both Wisconsin and the original
plaintiffs disclaimed any contention that Wisconsin's burden
exceeds the travail of banks or other entities regulated by
statutory equivalents to the Driver's Privacy Protection Act;
they do not seek an opportunity to show at trial that the
state's cost per motorist surpasses the cost per bank depositor
or hospital patient or federal employee. Instead the argument
is formal: Congress’ failure to combine all information-
handling rules for the entire economy into a single statute
makes the Driver's Privacy Protection Act unconstitutional.
- 19a-
By like reasoning, if an economy-wide statute differentiated
in any way between state and private databases--something
all but inevitable--no duties at all could be laid on the states.
So cast, the argument is incompatible with South
Carolina, which sustained a statute that was addressed
exclusively to the states. The law in question, § 310(b)(!) of
the Tax Equity and Fiscal Responsibility Act of 1982,
Pub. L. 97-248, 96 Stat. 596, dealt with state and local
governments alone. It amended 26 U.S.C. § 103, another
statute limited to governmental bodies. Section 103(a) says
that "[e]xcept as provided in subsection (b), gross income
does not include interest on any State or local bond."
Subsection (b) allows taxation of three kinds of state and
local bonds, of which an unregistered bond is one. Congress
used the tax system to induce states to issue registered bonds;
the Supreme Court assumed that the "inducement" was no
different from compulsion but nonetheless rejected a
constitutional challenge to the statute. Congress had
effectively required private borrowers to use registered
bonds, too, but it did this in a different statute. If one statute
addressed only to states passes muster when other laws place
private parties under equivalent obligations, why not the
Driver's Privacy Protection Act? Even in the world of the
dormant commerce clause, where the Court enforces a rule
that states may not discriminate against interstate commerce,
the Justices do not insist that the nondiscriminatory
framework be accomplished within a single statute or
section; a burden on interstate commerce imposed by one law
may be offset by another, if the bottom line is substantially
equal burdens. See General Motors Corp. v. Tracy, 519 U.S.
278, 117 S. Ct. 811, 136 L.Ed.2d 761 (1997).
To all of this the fourth circuit responded: "Congress
may regulate the conduct of the States only through laws of
general applicability." Condon, 155 F.3d at 462 (emphasis in
original). The critical word is "only", and the case cited for
the proposition is New York. The fourth circuit wrote: "the
- 20a -
Court specifically stated that under the Garcia line of cases,
Congress may only 'subject[ ] a State to the same legislation
applicable to private parties." 155 F.3d at 461 n.5, quoting
from New York, 505 U.S. at 160, 112 S. Ct. 2408 (brackets in
Condon). Once again, the word "only" comes from the
fourth circuit rather than the Supreme Court. The full
sentence in New York reads: "Most of our recent cases
interpreting the Tenth Amendment have concerned the
authority of Congress to subject state governments to
generally applicable laws." This is some distance from a
holding that duties imposed on state and private parties must
appear in "the same legislation". Discrimination against
states is forbidden, but a nondiscriminatory system may take
more than one law to implement. A statute covering all
databases would rival the Internal Revenue Code for
complexity without offering states any real defense from the
cost and inconvenience of regulation. The Clean Air and
Clean Water Acts, which could be given as examples of
"generally applicable" laws affecting the states, are so riddled
with exceptions, provisos, and special rules that they do not
ensure equal costs for similar activities. Cf. Chicago v.
Environmental Defense Fund, 511 U.S. 328, 1148S. Ct. 1588,
128 L.Ed.2d 302 (1994). Anyway, Brobdignagian legislation
is not the Constitution's objective, even when consolidation is
feasible. Wisconsin has forsworn any desire to show that
Congress has imposed on the states greater practical burdens
in data handling than private parties bear and therefore has
forfeited any argument that the anti-discrimination
component of intergovernmental immunities scuttles the Act.
Plaintiffs and amici curiae supporting them offer
additional constitutional objections to the Act. None is
persuasive.
-2la-
A
Both Wisconsin and the original plaintiffs insist that
the Act violates the eleventh amendment, but that part of the
Constitution deals with the location of private litigation, not
‘ with the substance of laws. Section 2723 permits criminal
and civil fines for violations of the Act's requirements. Any
action under § 2723 would be brought by the United States,
and the eleventh amendment does not curtail the national
government's ability to sue a state in federal court. West
Virginia v. United States, 479 U.S. 305, 311 n.4, 107 S. Ct.
702, 93 L.Ed.2d 639 (1987). Section 2724 authorizes private
litigation against "[a] person who knowingly . . . discloses or
uses" information that the Act keeps confidential, but under
§ 2725(2) "'person’ means an individual, organization or
entity, but does not include a State or agency thereof". This
prevents private actions against states, and one would think
that it forestalls any concern under the eleventh amendment.
Wisconsin fears that § 2724 will be read to authorize actions
against public employees in their official capacities, leading
to monetary awards that must be paid from the public fisc,
but the statute seems to limit suits to personal-capacity
actions, which avoids constitutional problems. Hafer v. Melo,
502 USS. 21, 112 S. Ct. 358, 116 L.Ed.2d 301 (1991). If in
the future a suit under § 2724 exposes the state to financial
liability, there will be time enough to determine whether the
Constitution authorizes that step--which will present a
question we have ducked: whether § 5 of the fourteenth
amendment supports the Act and therefore authorizes
Congress to override the eleventh amendment. See City of
Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L.Ed.2d
624 (1997); Velasquez v. Frapwell, 160 F.3d 389 (7th Cir.
1998).
B
The original plaintiffs--five members of Wisconsin's
legislature, one newspaper editor, and one attorney--contend
- 22a -
that the Act violates the first amendment (applied to the
states by the fourteenth) by limiting their access to
information in public records. One response is that the first
amendment differs from the Freedom of Information Act.
Peering into public records is not part of the "freedom of
speech" that the first amendment protects. "There is no
constitutional right to have access to particular government
information, or to require openness from the bureaucracy.”
Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S. Ct. 2588, 57
L.Ed.2d 553 (1978) (plurality opinion). No one thinks that
the Privacy Act violates the first amendment. Well, maybe
these plaintiffs do think this, but the position is untenable.
Although the Supreme Court's holdings that some
access rights connected to the judicial process are protected
by the first amendment, see Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L.Ed.2d 973
(1980), means that we cannot exclude the possibility that
some particular record in a drivers-license system may in the
future be deemed constitutionally exempt from the Act, this
facial attack is not the time or place to explore that subject.
We do not have a demand for a particular record that would
put the constitutional issue in context. We do not have the
right defendant, either. Persons who want to assert a
constitutional right of access to a particular record should
request that record and, if access is denied, sue the record's
custodian who could have disclosed it. The United States
and its Attorney General, the two defendants in this suit, do
not maintain systems of drivers’ records and can neither grant
nor deny access to any particular information. As we have
stressed in recent cases, the proper defendant is the person
whose actions cause injury, not the author of the legal rule
that leads to those actions. J/linois v. Chicago, 137 F.3d 474,
478 (7th Cir. 1998); Quinones v. Evanston, 58 F.3d 275, 277
(7th Cir. 1995); Mueller v. Reich, 54 F.3d 438 (7th Cir.
1995), vacated on unrelated grounds under the name
Wisconsin v. Mueller, _ U.S. __, 117 S. Ct. 1077, 137
L.Ed.2d 212 (1997).
- 23a-
¢
The original plaintiffs and an amicus curiae contend
that the Act violates Art. 4 § 4 of the Constitution: "The
United States shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature,
or of the Executive (when the Legislature cannot be
convened) against domestic Violence." Even if we were to
put to one side the Supreme Court's holding that claims under
the guarantee clause are not justiciable when raised by
private persons, see Luther v. Borden, 48 U.S. (7 How.) 1, 12
L.Ed. 581 (1849), and perhaps even when raised by states,
see New York, 505 U.S. at 185, 112 S. Ct. 2408, we would
see little merit to the contention. How does compliance with
the Act deprive states of “a Republican Form of
Government"? Surely plaintiffs don't mean that all federal
laws violate the Constitution when applied to states, because
they may contradict the choices made by the states’ elected
legislators. No sensible person believes that the supremacy
clause, which explicitly binds states to federal law,
contradicts the guarantee clause and thereby puts the
Constitution at war with itself. No sensible person thinks
that when states raise money by issuing securities in
interstate commerce, they are free to commit fraud because
§ 17 of the Securities Act of 1933, 15 U.S.C. § 77q, the anti-
fraud rule, violates the guarantee clause! Or that states are
constitutionally entitled to fill their treasuries by stealing
from federally-insured banks. But if some federal laws can
apply to states and others cannot, how are judges to choose?
It is quite enough to say that the Driver's Privacy Protection
Act leaves the state's internal and political affairs alone and
regulates only how it interacts with private parties who seek
information in its possession.
- 24a -
Il
Many thoughtful people believe that National League
of Cities is more faithful to the original constitutional plan
than is Garcia. But our part is to apply the Supreme Court's
jurisprudence as we find it. Indeed, for reasons we have
discussed, Wisconsin's position would be doubtful even if
National League of Cities were resurrected. The Driver's
Privacy Protection Act affects the states as operators of
databases, not as sovereigns, and does not interfere with the
achievement of any essential state function or discriminate
against the states. Accordingly, the judgment of the district
court is
REVERSED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
- 25a -
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STATE REPRESENTATIVE DAVID M. TRAVIS,
STATE SENATOR FRED RISSER, STATE
REPRESENTATIVE ROBERT K. ZUKOWSKI,
STATE REPRESENTATIVE EUGENE HAHN,
STATE REPRESENTATIVE MICHAEL D.
HUEBSCH, DAVID ZWEIFEL and PAMELA
MOORSHEAD,
Plaintiff(s),
JUDGMENT IN A CIVIL CASE
and Case No. 97-C-0701-C
ROGER D. CROSS, in his official capacity
as Administrator of the Division of Motor
Vehicles of the Wisconsin Department of
Transportation, and the DIVISION OF
MOTOR VEHICLES OF THE WISCONSIN
DEPARTMENT OF TRANSPORTATION,
Realigned Plaintiffs,
v.
JANET RENO, Attorney General of the
United States, and the UNITED STATES
OF AMERICA,
Defendant(s).
- 26a -
This action came for consideration before the court
with U.S. DISTRICT JUDGE BARBARA B. CRABB
presiding. The issues have been considered and a decision
has been rendered.
IT IS ORDERED AND ADJUDGED
that the motion for summary judgment of plaintiffs Roger
Cross and the Division of Motor Vehicles of the Wisconsin
Department of Transportation is GRANTED.
IT IS ORDERED AND ADJUDGED that the Driver's
Privacy Protection Act violates the Tenth Amendment of the
United States Constitution. IT IS FURTHER ORDERED
AND ADJUDGED that defendants are enjoined permanently
from enforcing the Driver's Privacy Protection Act against
plaintiffs, and this case is CLOSED.
Approved as to form this 10th day of June , 1998.
/s/
BARBARA B. CRABB
U.S. DISTRICT JUDGE
/s/ June 11, 1998
Joseph W. Skupniewitz, Clerk of Court
- 27a -
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STATE REPRESENTATIVE DAVID M.
TRAVIS, STATE SENATOR FRED RISSER,
STATE REPRESENTATIVE ROBERT K.
ZUKOWSKI, STATE REPRESENTATIVE
EUGENE HAHN, STATE REPRESENTATIVE
MICHAEL D. HUEBSCH, DAVID ZWEIFEL
and PAMELA MOORSHEAD,
OPINION AND
ORDER
Plaintiffs,
97-C-701-C
and
ROGER D. CROSS, in his official capacity as
Administrator of the Division of Motor Vehicles
of the Wisconsin Department of Transportation,
and the DIVISION OF MOTOR VEHICLES OF
THE WISCONSIN DEPARTMENT OF
TRANSPORTATION,
Realigned Plaintiffs,
v.
JANET RENO, Attorney General of the United
States, and the UNITED STATES OF AMERICA,
Defendants.
In this civil action for declaratory and injunctive
relief, plaintiffs challenge the Driver's Privacy Protection Act
of 1994, 18 U.S.C. §§ 2721-2725, which prohibits states
from disclosing "personal information" collected by their
- 28a -
motor vehicle departments in connection with automobile
and driver's license registration except for certain permissible
uses. Plaintiffs contend that the act violates the First, Tenth
and Eleventh Amendments as well as the Guarantee Clause
of Article IV of the Constitution and they seek an order
enjoining enforcement of the act. Defendants contend that
even if the act runs afoul of the Tenth Amendment, Congress
has authority to pass it under the Fourteenth Amendment
because it is an attempt to enforce the right of privacy in the
nondisclosure of confidential information.
The case is before the court on the motion of
defendants Janet Reno and United States of America to
dismiss for lack of subject matter jurisdiction and for failure
to state a claim on which relief may be granted. In addition,
both sets of plaintiffs have filed motions for summary
judgment. I conclude that the act forces state officials and
state employees to administer and enforce a _ federal
regulatory scheme in violation of the Tenth Amendment.
Furthermore, the act is not a valid exercise of Congress's
authority under § 5 of the Fourteenth Amendment because
the right of privacy does not encompass the type of
information covered by the act.
Defendants raise compelling doubts about the
standing of the original plaintiffs, Travis, Risser, Zukowski,
Hahn, Huebsch, Zweifel and Moorshead, to bring their
claims. However, there is no need to reach the merits of
these arguments. It is undisputed that the state plaintiffs,
Cross and Division of Motor Vehicles, are proper parties to
this action; both sets of plaintiffs raise Tenth Amendment
challenges; and resolution of this issue in favor of the state
plaintiffs is dispositive of the entire case. For the same
reasons, there is no need to address plaintiffs’ arguments
regarding the First and Eleventh Amendments or the
Guarantee Clause. The state plaintiffs’ motion for summary
judgment will be granted, defendants’ motion to dismiss will
- 29a -
be denied with prejudice and the original plaintiffs’ motion
for summary judgment will be denied without prejudice.
As an initial matter, I note that even though the State
of Wisconsin is not a stranger to this court, the state plaintiffs
have disregarded this court's standing procedures to be
followed on motions for summary judgment by citing
numerous factual propositions not contained in their
proposed findings of fact. These proposed facts will be
disregarded. For the sole purpose of deciding this motion, I
find from the parties’ proposed findings of fact and from the
record that there is no genuine dispute with respect to the
following material facts.
UNDISPUTED FACTS
Defendant United States of America is a sovereign
constitutional government of those limited enumerated
powers specified in and restrained by the United States
Constitution. Defendant Janet Reno is Attorney General of
defendant United States and is responsible for the
enforcement of the criminal and civil penalties that may be
imposed pursuant to the Driver's Privacy Protection Act.
Plaintiffs David Travis, Robert Zukowski, Eugene
Hahn and Michael D. Huebsch are duly elected members of
the Wisconsin Assembly. Plaintiff Fred Risser is a duly
elected member of the Wisconsin Senate. Along with other
legislators, plaintiffs Travis, Zukowski, Huebsch and Risser
are responsible for making decisions about issues facing state
government. Plaintiff David Zweifel is the editor of the
Capitol Times, a Madison newspaper, and president of the
Wisconsin Freedom of Information Council, an organization
composed of representatives of state media outlets dedicated
to preserving maximum public access to government records.
Plaintiff Pamela Moorshead is an attorney licensed to
practice law in the state of Wisconsin. Much of her practice
- 30a -
concentrates on the defense of individuals charged with
criminal and traffic violations.
Plaintiff Roger Cross is Administrator of plaintiff
Division of Motor Vehicles of the Wisconsin Department of
Transportation. Plaintiffs Cross, Division of Motor Vehicles
and their officers and employees are responsible for
implementing the Driver's Privacy Protection Act. They
have had to develop a form to ascertain whether individuals
requesting driver record information are entitled to personal
information under the act. In addition, the state plaintiffs
have had to train employees and monitor their compliance
with the act, mail a form to bulk mail account holders, review
completed forms, answer questions about the act and send
forms to individuals upon request. Congress has provided no
federal funds to states for such activities. The state plaintiffs
have received numerous complaints about restrictions
imposed by the act. Plaintiff Division of Motor Vehicles
receives approximately $8 million each year in revenue from
sales of driving record abstracts to paying customers at a rate
of $3 - 4 per record. It is possible that implementation of the
act will have adverse effects on this revenue stream.
Recently, the original plaintiffs, through counsel,
requested the driver record information of Louis Kent
Ostrom of Madison. The Wisconsin State Journal had
reported that Ostrom had been arrested for drunk driving and
destruction of property while on his way to court for an
appearance on an earlier charge of drunk driving. Plaintiffs
requested this information to determine whether Ostrom was
subject to a court-ordered interlock device and, if so, whether
he had complied with that order. Counsel for plaintiffs Cross
and the Division of Motor Vehicles refused to grant this
request because of the act.
-3la-
OPINION
A. Motor Vehicle and Driver Record Information
under Federal and Wisconsin Law
The Driver's Privacy Protection Act prohibits state
motor vehicle departments from disclosing personal
information obtained in connection with a motor vehicle
record. 18 U.S.C. §2721. The act defines "personal
information" as anything "that identifies an individual,
including an individual's photograph, social security number,
driver identification number, name, address (but not the
5-digit zip code), and medical or disability information, but
does not include information on vehicular accidents, driving
violations, and driver's status." § 2725(3). There are
numerous exceptions to the general rule against disclosure.
States must disclose information in connection with various
matters related to vehicle and driver safety and to carry out
certain federal statutes related to driving and automobiles.
§ 2721(b). In addition, Congress has provided fourteen
“permissible uses" for which information may be disclosed.
§ 2721(b)(1)-(14). | For example, state motor vehicle
departments may release personal information for use by a
governmental agency, insurer, tow truck operator, or licensed
private investigator. Also, information may be released in
connection with judicial or arbitral proceedings, for bulk
distribution and to anyone who has written permission of the
individual to whom the information pertains. Finally, motor
vehicle departments may allow individuals to opt out of these
restrictions, thereby permitting free disclosure of any
information provided to the departments by such individuals.
§ 2721(b)(11). Authorized recipients of personal information
are prohibited from reselling or redisclosing information
except as provided in the act. § 2721(c).
State motor vehicle departments, including plaintiff
Division of Motor Vehicles, face civil penalties of $5,000 a
day for each day they maintain a policy or practice of
- 32a-
substantial noncompliance with the act. § 2723(b). Persons
who violate the act knowingly, including plaintiff Cross and
the officers and employees of plaintiff Division of Motor
Vehicles, face criminal fines. § 2723(a). In addition, persons
may be subject to individual civil actions for actual and
punitive damages and other sanctions for knowingly
disclosing, obtaining or using any personal information in
violation of the act. § 2724. The act defines "person" as "an
individual, organization or entity, but does not include a State
or agency thereof." § 2725(2).
Under Wisconsin law, driver license and motor
vehicle registration information is a public record. Wis. Stat.
§§ 19.35(1)(a), 341.17(6), 343.24(1) and (2m). Custodians
of driver record information are prohibited from requiring
persons requesting such information to disclose their names
or the purposes of their request. § 19.35(1)(i).
B. Fourteenth Amendment
The Supreme Court has indicated that when Congress
passes a law pursuant to § 5 of the Fourteenth Amendment
the limitations on congressional authority imposed by the
Tenth Amendment are "attenuated" because the post-Civil
War amendments "were specifically designed as an
expansion of federal power and an intrusion on state
sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 468, 111
S.Ct. 2395, 115 L.Ed.2d 410 (1991) (citation and quotation
marks omitted). Defendants observe that the Court has
located the right to privacy in the Fourteenth Amendment,
see Whalen v. Roe, 429 U.S. 589, 598 n. 23, 97 S.Ct. 869, 51
L.Ed.2d 64 (1977), and argue that Congress passed the
Driver's Privacy Protection Act pursuant to § 5 of this
amendment to safeguard the privacy of personal information
collected by state motor vehicle departments. Thus,
according to defendants, even if the act runs afoul of the
Tenth Amendment, it is constitutional under the Fourteenth
Amendment.
eee a
- 33a-
In Pesce v. J. Sterling Morton High School, 830 F.2d
789, 795-796 (7th Cir.1987) (citing Whalen, 429 U.S. at
598-600, 97 S.Ct. 869), the Seventh Circuit concluded that
the right of privacy encompasses an interest in the
confidentiality of private information, holding that an
individual cannot be compelled to divulge such information
under certain circumstances. The court acknowledged that
the Fifth Circuit had held that the right of privacy might
prohibit the government from disclosing private information,
but it noted that the circumstances in that case, Fadjo v.
Coon, 633 F.2d 1172 (Sth Cir.1981), were not those of
plaintiff Pesce. (Fadjo alleged that the state breached his
federal right of confidentiality when it released private
information to insurance investigators; Pesce was disciplined
for failing to disclose to school officials the sexual abuse of a
student he learned about in a confidential counseling
session.) See Pesce, 830 F.2d at 797 (citing Fadjo, 633 F.2d
at 1175-1176). Although other courts of appeal have joined
the Fifth Circuit in concluding that there is a right to privacy
in the nondisclosure of private information, some circuits are
skeptical of this notion. See American Federation of
Government Employees v. Department of Housing and
Urban Development, 118 F.3d 786, 791-793 (D.C.Cir.1997)
(collecting cases and "expressing grave doubts as to the
existence" of such a right).
Even assuming that there is a constitutional right to
privacy in the nondisclosure of private information,
defendants breeze by the operative question whether
information protected by the act is "private." It is not.
Because the right of privacy is not absolute, see Walls v. City
of Petersburg, 895 F.2d 188, 192 (4th Cir.1990), the
Constitution does not prohibit disclosure of all information
about an individual. There must be a legitimate expectation
of privacy in the confidentiality of information to justify
constitutional protection. See id. "The legitimacy of an
individual's expectations depends, at least in part, upon the
intimate or otherwise personal nature of the material which
- 34a -
the state possesses." Mangels v. Pena, 789 F.2d 836, 839
(10th Cir.1986). Under this standard, courts have held that
there is a legitimate expectation of privacy regarding medical
records, see United States v. Westinghouse Electric Corp.,
638 F.2d 570, 577 (3d Cir.1980), the contents of a personal
diary, see Sheets v. Salt Lake County, 45 F.3d 1383,
1387-1388 (10th Cir.1995), and financial records. See
Fraternal Order of Police, Lodge No. 5 v. City of
Philadelphia, 812 F.2d 105, 115 (3d Cir.1987). However,
privacy interests are not implicated by an_ internal
investigation report conducted by a city fire department
indicating that certain firefighters had used illegal drugs, see
Mangels, 789 F.2d at 839, or information regarding an
individual's marital and family criminal history that is "freely
available in public records." Walls, 895 F.2d at 193.
The act prohibits disclosure of "an individual's
photograph, social security number, driver identification
number, name, address ..., telephone number, and medical or
disability information....". 18 U.S.C. § 2725(3). There is no
constitutional right to privacy in the disclosure of this
information because there is no legitimate expectation of
confidentiality regarding it. One's name, address and
_ telephone number are available to anyone with a phone book.
Although the other information subject to the act is arguably
more personal in nature, it is hardly more sensitive than one's
marital, drug abuse and family criminal history. Driver
identification and social security numbers are disclosed
regularly, usually when cashing a check, applying for credit
or in any situation in which an individual must produce a
driver's license. Defendants concede this point, but counter
that individuals "only expect to produce their driver's licenses
... selectively and voluntarily." Defs.' Br. in Opp. to Mot. for
Summ. J. (Dkt.# 26) at 13. Though defendants may be
correct, the level of confidentiality between individuals and
their doctors and accountants and the sensitivity of
information entrusted to these professionals is not on par
with the type of transactions engaged in with supermarket
NN re SSS
- 35a-
cashiers and others who are frequently on the receiving end
of information subject to the act. In any event, plaintiffs note
correctly that it is doubtful whether the act will safeguard
anyone's privacy. The act is riddled with exceptions that any
determined, resourceful person could exploit, particularly
since there are no standards for verifying the truth or
accuracy of claims made by individuals requesting
information.
ed Tenth Amendment
The Tenth Amendment provides that "[t]he powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people." Plaintiffs contend that the
Driver's Privacy Protection Act violates the Tenth
Amendment because it "commandeers" Wisconsin within the
meaning of two recent Supreme Court opinions, Printz v.
United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914
(1997) and New York v. United States, 505 U.S. 144, 112
S.Ct. 2408, 120 L.Ed.2d 120 (1992). To date, three district
courts have analyzed whether the act runs afoul of the Tenth
Amendment. See Pryor v. Reno, 998 F. Supp. 1317
(M.D.Ala.1998) (held constitutional); Condon v. Reno, 972
F. Supp. 977 (D.S.C.1997) (held unconstitutional); State of
Oklahoma ex rel. Oklahoma Dept. of Public Safety v. United
States, 994 F. Supp. 1358 (W.D.Okla.1997) (same).
Although Tenth Amendment jurisprudence has been a
moving target over the past two decades, see, e.g., National
League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49
L.Ed.2d 245 (1976); Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d
1016 (1985) (overruling National League of Cities), the
Court has recognized consistently that the amendment is one
of many ways in which the Constitution preserves a
structural balance between a federal government of limited
- 36a -
powers and fifty autonomous states. Just as the Bill of
Rights prohibits the federal government from encroaching
upon certain individual liberties and just as the Commerce
Clause confines federal lawmaking authority to matters
related to interstate commerce, the Tenth Amendment
"restrains the power of Congress." New York, 505 U.S. at
156, 112 S.Ct. 2408. Such restraints do not exist for the sake
of restraint itself. Rather, they are an acknowledgment that
"the Constitution established a system of dual sovereignty ...
in which States surrendered many of their powers to the new
Federal Government ... [but] retained a residual and
inviolable sovereignty." Printz, _US.at__,117S.Ct. at
2376 (citations and quotation marks omitted). In this sense,
"the Tenth Amendment confirms that the power of the
Federal Government is subject to limits that may, in a given
instance, reserve power to the states." New York, 505 U.S. at
157, 112 S.Ct. 2408. Such limits are "not derived from the
text of the Tenth Amendment itself," but from other
constitutional provisions. Jd. In essence, the Court has
reasoned that the Tenth Amendment not only reserves certain
powers to the states but sets some structural limits on the way
in which Congress may exercise its limited powers.
Under this formulation, although Congress may not
"directly compel[ ] [states] to enact or enforce a federal
regulatory program,” Hodel v. Virginia Surface Mining
Reclamation Ass'n, Inc., 452 U.S. 264, 288, 101 S.Ct. 2352,
69 L.Ed.2d 1 (1981), Congress has at its disposal several
acceptable methods of "encouraging a State to regulate in a
particular way" and "influencing a State's policy choices."
New York, 505 U.S. at 166, 112 S.Ct. 2408. For example,
Congress may use its spending power to "attach conditions
on the receipt of federal funds" so long as a nexus exists
between these conditions and the purpose of the federal
spending. See id. at 167, 112 S.Ct. 2408. In addition,
Congress may give states the option of regulating private
Commerce Clause activity according to federal standards or
"having state law pre-empted by federal regulation." /d. at
- 37a -
167-168, 112 S.Ct. 2408 (citing various environmental laws
as examples of this so-called "cooperative federalism").
In New York, 505 U.S. at 175, 112 S.Ct. 2408, the
Court struck down a provision of the Low-Level Radioactive
Waste Policy Amendments Act of 1985, 42 U.S.C.
§§ 2021b-2021j. The offending provision presented states
with a choice: either they could take title to radioactive
waste generated within their borders or regulate storage and
disposal of such waste according to the direction of
Congress. The Court held that this provision went too far:
Because an instruction to state governments to
take title to waste, standing alone, would be beyond
the authority of Congress, and because a direct order
to regulate, standing alone, would also be beyond the
authority of Congress, it follows that Congress lacks
the power to offer the states a choice between the two.
* * *£* *£ * *
Respondents emphasize the latitude given to
the States to implement Congress’ plan. The Act
enables the States to regulate pursuant to Congress’
instructions in any number of different ways.... This
line of reasoning, however, only underscores the
critical alternative a State lacks: A State may not
decline to administer the federal program. No matter
which path the State chooses, it must follow the
direction of Congress.
Id. at 176-177, 112 S.Ct. 2408. In summary, the Court
declared that the "Federal Government may not compel the
States to enact or administer a federal regulatory program."
id. at 188, 112 S.Ct. 2408. In Printz, _US.at__,117
S.Ct. at 2384, the Court took this notion one step further,
holding that the strictures of the Tenth Amendment are not
limited solely to federal authority over state legislatures:
- 38a -
"The Federal Government may ... [not] command the States'
officers, or those of their political subdivisions, to administer
or enforce a federal regulatory program." Unlike the "take
title" provision in New York, the statute at issue in Printz did
not compel state lawmakers to adopt federal regulations or
legislation. However, it required "state law enforcement
officers to participate, albeit only temporarily, in the
admimistration of a federally enacted regulatory scheme."
Printz, __ U.S. at __, 117 S.Ct. at 2369. The Court held
that no constitutionally significant distinction could be drawn
betwe'en compelling a state legislature to make federal law
and compelling state officials to enforce federal law. /d. 117
S.Ct. at 2380.
Printz involved a challenge to select provisions of the
Brady Handgun Violence Prevention Act, 18 U.S.C. § 922,
that required local law enforcement officers to perform three
duties related to the sale of firearms: 1) conduct a
background check on individuals interested in purchasing a
gun; 2) provide would-be purchasers who are determined to
be ineligible to own a firearm with a written statement of the
reason for this determination; and 3) destroy all records
relate:d to the background checks of individuals determined to
be eligible to own a firearm. See Printz, _U.S.at_,117
S.Ct. at 2369. The second obligation applied only if an
officer chose to notify a gun dealer that a pending sale would
be illegal. /d. The Court noted that although the act did not
requisre such notification and although officers
are subjected to no federal requirement that they
prevent the sales determined to be unlawful (it is
perhaps assumed that their state-law duties will
require prevention or apprehension), they are
empowered to grant, in effect, waivers of the
federally prescribed 5-day waiting period for handgun
purchases by notifying the gun dealers that they have
no reason to believe the transactions would illegal.
*
t
>
.*
My
%
Si
- 39a -
Id. As already indicated, the Court held that a federal law
that directs state officials to administer or enforce a federal
regulatory scheme violates the Tenth Amendment. Of
course, this begs the question of identifying such laws.
Unfortunately, the Court provided little explicit guidance
apart from describing the Brady Act and stating that from this
description it was "apparent" that the act directed state law
enforcement officers to administer a federal regulatory
scheme. /d. Nevertheless, the Court provides some
illumination in its discussion of why laws such as the Brady
Act and the "take title" provision violate the Tenth
Amendment.
In New York and Printz, the Court did not come to the
defense of state sovereignty for the purpose of preserving or
increasing state power. Instead, the Court recognized that
when federal regulations bear the imprimatur of a state
because they are enacted by state lawmakers at the direction
of Congress, a fundamental attribute of sovereignty is
threatened: democratic accountability. See New York, 505
U.S. at 168-169 and 180-183, 112 S.Ct. 2408 (discussing
ways in which state and federal officials could shift
responsibility for siting waste incinerator in absence of Tenth
Amendment limitations). Applying this concept to the Brady
Act, the Court stated:
By forcing state governments to absorb the financial
burden of implementing a federal regulatory program,
Members of Congress can take credit for "solving"
problems without having to ask their constituents to
pay for the solutions with higher federal taxes. And
even when the States are not forced to absorb the
costs of implementing a federal program, they are still
put in the position of taking the blame for its
burdensomeness and for its defects.... Under the
present law, for example, it will be the CLEO [law
enforcement officer] and not some federal official
who stands between the gun purchaser and immediate
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possession of his gun. And it will likely be the
CLEO, not some federal official, who will be blamed
for any error (even one in the designated federal
database) that causes purchasers to be mistakenly
rejected.
Printz, 521 U.S. at__, 117 S.Ct. at 2382.
The Driver's Privacy Protection Act forces state
officials to administer and enforce a federally enacted
regulatory program in violation of the Tenth Amendment.
The act establishes a detailed set of rules to control the
circumstances under which Wisconsin may disclose certain
information in its driver's license and motor vehicle records
to third parties; these rules displace conflicting policies
regarding disclosure established by Wisconsin legislators
through the state's open records law; state officials are
responsible for insuring that this information is disclosed
only for designated purposes specified by the federal rules;
and the federal government has no role in this process,
financially or otherwise. If this does not describe a federal
law that directs state officials to administer or enforce a
federal regulatory program, the standard articulated by the
Supreme Court in New York and Printz has done great
damage to the English language. That the act presses state
officials into federal service is confirmed further by
consideration of the way in which it will diminish
accountability. To paraphrase the Court in Printz, 117 S.Ct.
at 2382, the Driver's Privacy Protection Act will put state
officials in the position of taking the blame for the act's
burdensomeness and defects because it will be some state
official who stands between an individual interested in
obtaining information subject to the act and possession of
this information and it will be a state official who is blamed
for any error that causes an applicant to be rejected
mistakenly. That states may avoid obligations imposed by
the act by "choosing" to close their motor vehicles records to
the public entirely does not avoid this problem because
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states, not the federal government, will remain accountable to
their citizens for such a decision. Thus, although defendants
insist that the act implicates nothing more remarkable than
Congress's authority under the preemption clause, New York
and Printz establish that when the federal government
preempts and such preemption entails the administration or
enforcement of federal regulations, the federal government
must take political responsibility and pay the costs of
regulation--something that Congress has declined to do in
this instance.
Defendants assert that states are not required to
administer or enforce the rules and exceptions provided in
the Driver's Privacy Protection Act but do not explain how
these provisions are administered and enforced in the first
place. Instead, defendants suggest two ways in which the act
can be distinguished from a law that presses state officials
into federal service. Defendants draw a distinction between:
1) positive and negative injunctions, maintaining that while
the Brady Act required local law enforcement officers to take
certain actions (conduct background checks), the Driver's
Privacy Protection Act prohibits state officials from taking
certain actions (releasing personal information to the wrong
people for the wrong purposes); and 2) Congressional
enactments that require states to regulate third parties and
those that apply to the states directly and are an effort to
resolve state-created problems.
There is no explicit support in New York or Printz for
anchoring Tenth Amendment jurisprudence in_ these
distinctions. Rather, they are based loosely on a series of
opinions involving so-called laws of general applicability
that have survived Tenth Amendment scrutiny. See
Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d
1020 (1968) (Fair Labor Standards Act); National League of
Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245
(1976) (same); Garcia, 469 U.S. 528, 105 S.Ct. 1005, 83
L.Ed.2d 1016 (same); Fry v. United States, 421 U.S. 542, 95
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S.Ct. 1792, 44 L.Ed.2d 363 (1975) (Economic Stabilization
Act); United Transportation Union v. Long Island R. Co.,
455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982)
(Railway Labor Act); Equal Employment Opportunity
Commission v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75
L.Ed.2d 18 (1983) (Age Discrimination in Employment Act);
South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99
L.Ed.2d 592 (1988). In Printz, _U.S.at___, 117 S.Ct. at
2383 and New York, 505 U.S. at 160, 112 S.Ct. 2408, the
Court acknowledged that it has drawn a consistent distinction
between laws of general applicability and laws targeted
exclusively at states. However, the Court disowned any
similarity between laws of general applicability and the
Brady Act and the "take title" provision. Defendants are
correct that the purpose of drawing a distinction between ~
laws of general applicability and laws directed exclusively at
States is not to suggest that the former are always
constitutional and the latter are always unconstitutional or to
create two different standards for evaluating Tenth
Amendment claims. Rather, the distinction is one indication
how much a congressional enactment upsets the structural
balance between federal and state sovereignty, if at all.
By way of example, South Carolina v. Baker, 485
U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592, involved a federal
law that effectively required states to issue registered bonds
and stop issuing bearer bonds. The law applied with equal
force to bonds issued by the federal government and private
corporations. Responding to South Carolina's contention that
the law required it to amend existing state statutes and figure
out how to implement a system for issuing registered bonds,
the Court stated that
[s}uch "commandeering" is an inevitable consequence
of regulating a state activity. Any federal regulation
demands compliance. That a State wishing to engage
in certain activity must take administrative and
sometimes legislative action to comply with federal
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standards regulating that activity is a commonplace
that presents no constitutional defects.
Id. at 514-515, 108 S.Ct. 1355. This law and the type of laws
upheld in National League of Cities and Fry involved "the
incidental application to the States of a federal law of general
applicability." Printz, _: U.S. at ___, 117 S.Ct. at 2383.
By contrast, "it is the whole object of the [Brady Act] to
direct the functioning of the state executive, and hence to
compromise the structural framework of dual sovereignty..."
Id.; see also New York, 505 U.S. at 160, 112 S.Ct. 2408
(radioactive waste statute not example of legislation that
applies equally to state and private parties alike). In Printz,
the Court acknowledged that it has responded with greater
deference to laws of general applicability and that a more
forgiving analysis of the Brady Act might have been
warranted had the act fit such a characterization. However,
because laws such as the ones at issue in Printz and New
York offend "the very principle of separate state
sovereignty," any attempt to balance the relevant state and
federal interests at stake is inappropriate. /d. When states
must conform their policies regarding areas such as
employment and bonds to the same federal regulations
applicable to any other private employer or bond issuer, the
threat to sovereignty is reduced, presumably because there is
less cause for concern when Congress tells everyone what to
do, as opposed to just the states. See Garcia, 469 U.S. at
554, 105 S.Ct. 1005 (San Antonio "faces nothing more than
the same minimum-wage and overtime obligations that
hundreds of thousands of other employers, public as well as
private, have to meet"). As explained by the Court in Baker,
485 U.S. at 514, 108 S.Ct. 1355, laws of general applicability
may regulate state activities, but they do not "seek to control
or influence the manner in which States regulate private
parties."
To state the obvious, the Driver's Privacy Protection
Act is not a law of general applicability. Only states collect
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driver's license and motor vehicle information and, if they so
choose, disseminate it. By contrast, the taxation law in Baker
applied generally to any state, federal or private entity that
issued bonds; the employment laws in Garcia, Fry, and
Equal Employment Opportunity Commission v. Wyoming
applied generally to any state, federal or private employer.
To be sure, the Driver's Privacy Protection Act restricts the
way in which private parties who obtain personal information
from a motor vehicle department may resell or redisclose
such information and provides civil and criminal liability for
those who violate these restrictions. See 18 U.S.C.
§$§ 2721(c) and 2722-2725. These provisions establish that it
is not the entire object of the act to direct the functioning of
state motor vehicle departments. However, the act's
applicability to private parties is incidental to its foremost
purpose: regulating the way in which states disseminate
information collected by their motor vehicle departments.
Contrary to defendants’ assertion, the act does not attempt to
regulate the market for information generally but only a
small, state-controlled facet of this market. The Driver's
Privacy Protection Act does not resemble this "general
applicability" line of cases in any other significant way.
In support of the position that act's injunctions are
positive as opposed to negative and that the act directly
regulates state-created problems, defendants cite the
following passage from Pryor, 998 F.Supp. at 1331:
The DPPA does not violate the Tenth Amendment, as
it is a direct prohibition on the State from releasing
personal DMV records for impermissible purposes,
rather than a regulation requiring the State to enforce
the federal government's ban on personal DMV
disclosures.
Also, in Pryor, the district court concluded that the act differs
from the provisions at issue in Printz because "the DPPA
neither asks State officials to arrest or report violators of the
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DPPA, nor does it require States to ensure that state citizens
do not use or otherwise re-disclose personal DMV
information." Jd. at 1329. With respect, | disagree with
these conclusions. Although the obligations imposed upon
state employees by the Driver's Privacy Protection Act may
not be as onerous as those created by the Brady Act, the act is
not self-enforcing or self-administering: someone must do
something to insure that the state is in compliance with the
act. Specifically, states must disclose personal information to
carry out various federal statutes, see 18 U.S.C. § 2721(b),
and state employees are required to review requests for
information to determine whether such requests are for
permissible uses. The act contains no explicit instructions
regarding the extent to which state employees must
investigate and confirm the accuracy of claims made by
individuals requesting information. However, this does not
mean that the states’ obligation is not "affirmative,"
particularly when state employees face personal liability for
violating the act knowingly. Furthermore, contrary to the
court's reading in Pryor of the Brady Act, nothing in the act
required local law enforcement officers to arrest or report
violators or stop unauthorized transactions. See Printz,
U.S. at__, 117 S.Ct. at 2369 ("The Act does not require the
CLEO to take any particular action if he determines that a
pending transaction would be unlawful; he may notify the
firearms dealer to that effect, but he is not required to do
so"). Stripped of this distinction, the Driver's Privacy
Protection Act and the Brady Act each require states to
regulate the conduct of third parties to the extent that states
are forced to control who may obtain access to certain things,
whether information or handguns, without the direct
participation or financial backing of the federal government.
Finally, the Supreme Court has never endorsed the notion
that the constitutionality of a federal law challenged under
the Tenth Amendment turns on whether the law is an attempt
by Congress to resolve problems attributable to states, as
opposed to private parties or the federal government.
Regardless who is responsible for the expanding market in
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consumer information and the proliferation of handguns and
radioactive waste, Congress must exercise its authority
within the structural limits delineated by the Constitution and
the Supreme Court should it choose to enlist the states in
addressing these problems.
ORDER
IT IS ORDERED that:
1. The motion of defendants Janet Reno and United
States of America to dismiss for lack of subject matter
jurisdiction and for failure to state a claim on which relief
may be granted is DENIED;
2. The motion for summary judgment of plaintiffs
David Travis, Fred Risser, Robert Zukowski, Eugene Hahn,
Michael Huebsch, David Zweifel and Pamela Moorshead is
DENIED without prejudice;
3. The motion for summary judgment of plaintiffs
Roger Cross and the Division of Motor Vehicles of the
Wisconsin Department of Transportation is GRANTED;
4. The Driver's Privacy Protection Act violates the
Tenth Amendment of the United States Constitution.
5. Defendants are enjoined permanently from
enforcing the Driver's Privacy Protection Act against
plaintiffs.
Entered this 9th day of June, 1998.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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