Opposition Brief — Schaefer v. Denison

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JOHN MICHAEL SCHAEFER,

Petitioner,

DEPARTMENT OF MOTOR VEHICLES AND

PUBLIC SAFETY, State of Nevada,

RICHARD T. KIRKLAND, Director,

Respondent.

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On Petition For A Writ Of Certiorari

To The Nevada Supreme Court

.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

2

FRANKIE SUE Det Papa

Attorney General of the

State of Nevada

BRIAN RANDALL HuTCHINs

(Counsel of Record)

Chief Deputy Attorney General

MariAH L. SUGDEN

Assistant Chief Deputy Attorney General

555 Wright Way

Carson City, Nevada 89711-0900

(775) 684-4606

Counsel for Respondent and

Real Party in Interest

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the State of Nevada, Department of Motor

Vehicles and Public Safety (“DMV/PS”) may require an

applicant for a driver’s license or vehicle registration to

provide a residence address?

TABLE OF CONTENTS

Page

QUESTION . PRESHIGEEe i vcs ce neh es csnnsenees sees i

STATEMENT . ....+0+ssanupepee eee eae eee ee eae es ee 1

REASONS FOR DENYING THE PETITION......... 1

SUMMARY OF ARGUMENT... .........scsccecceees 2

ARGUMENT . .. <«ssi4 cae ee ee 2

THE NEVADA SUPREME COURT PROPERLY

RULED THAT SECTIONS 482.215(3) AND

483.290(1) OF THE NEVADA REVISED STATUTES

ARE CONSTITUEsoweees <ccb aan eee aenebenes vere. 2

A. The Right Of Privacy Does Not Protect Against

Disclosure Of One’s Residence Address...... 2

B. State Law May Limit An Individual’s Funda-

mental Right In Order To Promote A Compel-

ling State Iuieee@t... cicoccsp ese uwacseeuesens +

CONCLUSION . «44545 sanee en ns 6

lili _

TABLE OF AUTHORITIES

Page

CAsEs:

Carey v. Population Services Int’l, 431 U.S. 678

RD Ad adc ne ¢0s oS £0 oo 0 oo 64 ba swd0 eb aod 3

Roe v. Wade, 410 U.S. 113 (1973)................... 2, 4

Whalen v. Roe, 492 U.S. 589 (1977)................. 1,3

STATUTES:

NEV. REV. STAT. § 481.063(5)(k) ................0000- +

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STATEMENT

Respondent Richard T. Kirkland (“KIRKLAND”) is

substantially satisfied with the “Statement” set forth by

Petitioner John Michael Schaefer (“SCHAEFER”).

With respect to the proceedings in the federal court,

SCHAEFER has failed to accurately represent the court’s

ruling. The United States District Court, Case Number

CV-S-95-826-LDG (LRL), entered its Order dismissing the

matter on September 17, 1996, noting that SCHAEFER

initiated the action without filing a proper complaint and

further noting other abuses of the Federal Rules of Civil

Procedure. (App. at A-1 to A-4).

¢

REASONS FOR DENYING THE PETITION

This Petition should be denied as there are no com-

pelling reasons to support issuance of the Writ. First,

while the Nevada Supreme Court may have ruled on an

important federal issue, whether the right to privacy

includes a fundamental right to the privacy of one’s

residence address, the Nevada Supreme Court’s ruling on

this issue was not in conflict with relevant decisions of

this Court. Whalen v. Roe, 429 U.S. 589 (1977).

Second, assuming arguendo, that there exists a funda-

mental right to the privacy of one’s residence address, the

Nevada Supreme Court's ruling that legislation may limit

an individual’s privacy right if it is necessary to advance

a compelling state interest and is narrowly tailored to

advance that interest does not conflict with further rele-

vant decisions of this Court. Roe v. Wade, 410 U.S. 113

(1973).

SUMMARY OF ARGUMENT

The Nevada Supreme Court properly concluded that

the State may require an applicant for a driver’s license

or vehicle registration to provide a residence address. The

statutes at issue serve a legitimate and compelling state

interest. The information contained in the DMV/PS

records is relied upon by law enforcement and it is imper-

ative that such records contain accurate and reliable

information. There simply is no legal basis to consider

this matter further. The Petition should be denied.

¢

ARGUMENT

THE NEVADA SUPREME COURT PROPERLY RULED

THAT SECTIONS 482.215(3) AND 483.290(1) OF THE

NEVADA REVISED STATUTES ARE CONSTITU-

TIONAL

A. The Right Of Privacy Does Not Protect Against

Disclosure Of One’s Residence Address

While the Constitution does not explicitly provide for

the right of privacy, this Court recognized:

that one aspect of the “liberty” protected by the

Due Process Clause of the Fourteenth Amend-

ment is a “right of personal privacy, or a guar-

antee of certain areas or zones of privacy.” Roe

v. Wade, 410 U.S. 113, 152 (1973). This right of

eisai

personal privacy includes “the interest in inde-

pendence in making certain kinds of important —

decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 -

(1977). While the outer limits of this aspect of

privacy have not been marked by the Court, it is

clear that among the decisions that an individ-

ual may make without unjustified government

interference are personal decisions “relating to

marriage, Loving v. Virginia, 388 U.S. 1, 12

(1967); procreation, Skinner v. Oklahoma ex rel.

Williamson, 316 U.S. 535, 541-542 (1942); con-

traception, Eisenstadt v. Baird, 405 U-S., at

453-454; id., at 460, 463-465 (White, J., concur-

ring in result) family relationships, Prince v.

Massachusetts, 321 U.S. 158, 166 (1944); and

child rearing and education, Pierce v. Society of

Sisters, 268 U.S. 510, 535 (1925); Meyer v.

Nebraska, [262 U.S. 390, 399 (1923)].” Roe v.

Wade, supra, at 152-153. See also Cleveland

Board of Education v. LaFleur, 414 U.S. 632,

639-640 (1974).

Carey v. Population Services Int'l, 431 U.S. 678, 684-85

(1977). The concept of personal liberty protects against

governmental intrusion into only the most intimate of

personal affairs. Id. This Court held that a New York

statute which required that records be kept of all pre-

scriptions for controlled substances did not violate pri-

vacy rights as the law established adequate measures to

protect individual privacy. Whalen v. Roe, 429 U.S. at 600.

The Nevada Legislature, too, has chosen to safeguard

and protect the privacy of those individuals who choose

not to permit the release of personal information from

records held by the DMV/PS.? There are additional pro-

tections in the statute wherein the director may further

restrict access to DMV/PS records.? The Nevada Supreme

Court properly relied on Whalen in determining that the

statutes at issue were constitutionally valid.

B. State Law May Limit An Individual’s Funda-

— mental Right In Order To Promote A Compel-

ling State Interest.

Assuming arguendo that there is a fundamental right

to the privacy of-one’s residence address, state law may

limit an individual’s right to privacy if it is necessary to

promote a compelling state interest and it is narrowly

tailored to promote that interest. See, Roe v. Wade, 410 U.S.

at 155-56.

The Nevada Supreme Court properly concluded that

the State has a compelling interest in having accurate and

1 NEV. REV. STAT. § 481.063(5)(k). In the bulk distribution

of surveys, marketing material or solicitations, if the director

has adopted policies and procedures to ensure that: (1) The

information will be used or sold only for use in the bulk

distribution of surveys, marketing material or solicitations; (2)

Each person about whom the information is requested has

clearly been provided with an opportunity to prohibit such a

use; and (3) If the person about whom the information is

requested prohibits in a timely manner such a use, the bulk

distribution will not be directed toward that person.

2 NEV. REV. STAT. § 481.063(7). Except as otherwise

provided in subsection 2, the director may deny any use of the

files and records if he reasonably believes that the information

taken may be used for an unwarranted invasion of a particular

person’s privacy.

——— 2

reliable DMV/PS records which are not only relied upon

by DMV/PS for administrative purposes but for law

enforcement purposes as well. DMV/PS relies on these

records, in part, to notify an individual that his- driver’s

license or vehicle registration is due for renewal. Law

enforcement further relies on these records, for example,

to notify family that a loved one has been killed or

injured.

CONCLUSION

SCHAEFER’s claim of unconstitutionality is not

founded in law. He cites no authority to support his

contention that the statutes at issue infringe upon a con-

stitutionally protected privacy interest. SCHAEFER’s

Petition is facially deficient in that he has failed to set

forth any argument to support his Petition and should

further be rejected as it does not comply with this Court’s

rules.

The Nevada Supreme Court’s decision is consistent

with the decisions on point issued by the Court. Accord-

ingly, the Petition should be denied.

Respectfully submitted,

FRANKIE SUE Det PAPA

Attorney General of the

State of Nevada

BRIAN RANDALL HuTCHINS

(Counsel of Record)

Chief Deputy Attorney General

MarisH L. SUGDEN

Assistant Chief Deputy Attorney

General

555 Wright Way

Carson City, Nevada 89711-0900

(775) 684-4606

Counsel for Respondent and

Real Party In Interest

April, 2001

APPENDIX A

A-1

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

JOHN MICHAEL SCHAEFER, )

) Case No.

) CV-S-95-826-LDG

V. ) (LRL)

)

)

)

)

Petitioner,

JAMES P. WELLER, et al., ORDER

Respondents.

The following matters are before the court:

Petitioner’s Withdrawal of his Motion to Dismiss (#

18);

Petitioner’s Motion for Leave to File Second

Amended Complaint for Preliminary Injunction (# 18);

Petitioner’s Application for Order granting the with-

drawal of his motion to dismiss and leave to file the

second amended complaint (# 19);

Respondents’ Motion for Sanctions (# 21);

Petitioner’s Cross-motion for Sanctions (# 22);

Petitioner’s Request for Judicial Notice (# 24); and

Petitioner’s Motion for Summary Judgment (# 26).

The court recited the procedural history of this in its

Order of December 14, 1995 (Docket # 17). Most impor-

tantly, this court noted that Petitioner had initiated this

A-2

action without filing a proper complaint.’ The court had

denied the original petition for preliminary injunction,

and denied a subsequent motion seeking the identical

relief requested in the original petition. The court further

noted several of Petitioner’s other abuses of the Federal

Rules of Civil Procedure.

Nevertheless, the court provided Petitioner an oppor-

tunity to re-commence this action on a proper footing

with an appropriate complaint. Without knowledge of the

Court’s order, Petitioner filed a motion for leave to file a

proposed “Second Amended Complaint for Preliminary

Injunction.”? The proposed complaint fails to correct the

deficiency of this action: the lack of a proper complaint

seeking appropriate relief. This court twice denied Peti-

tioner’s requests for preliminary relief. As recited by its

caption, however, the proposed amended complaint

again seeks the preliminary relief.

The proposed complaint for preliminary injunction is

nearly identical to the initial petition that this court previ-

ously denied. Petitioner merely copied his initial petition,

1 The court is dismayed at the poor quality of Petitioner’s

papers. The court initially treated the petition for preliminary

injunction as a complaint because the quality of the pleadings

and papers filed by Petitioner suggested he lacked any training

in the law. Unfortunately, Petitioner is a long-standing member

of the Nevada Bar.

2 Although Petitioner captions the proposed pleading as a

Second Amended Complaint, the record fails to disclose that

Petitioner filed either a Complaint or an Amended Complaint.

Rather, the only “complaint” filed by Petitioner was a “Third-

party Complaint” that the court struck as improper.

A-3

crudely crossed out certain phrases and his copied signa-

ture with a black marker, and re-signed the petition.

Although Petitioner received the Court’s order, he chose

to rely upon the re-signed and re-filed original petition

that this court had already denied and chose not to file an

appropriate complaint. As could be expected, rather than

clearing up the confusion created by Petitioner’s

improper pleadings and papers, his decision to not file an

appropriate complaint resulted only in greater confusion.

Respondents, understandably, refused to respond to Peti-

tioner’s motion for summary judgment, asserting that

Petitioner failed to file an appropriate complaint as

required by this court’s order. Plainly, the only manner by

which the confusion can be resolved and this matter can

be set on a proper footing is to dismiss this action with-

out prejudice. This will require Petitioner to file and serve

an appropriate complaint. In so doing, the Court warns

Petitioner to pay careful attention to all Federal Rules of

Civil procedure. Petitioner is not a layman and must

abide by the stricter standards required of all attorneys

practicing before this court.

Accordingly,

IT IS ORDERED that Petitioner’s Motion for Leave

to File Second Amended Complaint for Preliminary

Injunction (# 18) is DENIED;

IT IS FURTHER ORDERED that this matter is DIS-

MISSED without prejudice;

IT IS ORDERED that Petitioner’s Withdrawal of his

Motion to Dismiss (# 18) is DENIED as moot;

A-4

IT Is FURTHER ORDERED Petitioner’s Application

for Order granting the withdrawal of his motion to dis-

miss and leave to file the second amended complaint (#

19) is DENIED as moot;

IT IS FURTHER ORDERED that Respondents’

Motion for Sanctions (# 21) is DENIED;

IT IS FURTHER ORDERED that Petitioner’s Cross-

motion for Sanctions (# 22) is DENIED;

IT Is FURTHER ORDERED that Petitioner’s Request

for Judicial Notice (# 24) is DENIED as moot; and

IT Is FURTHER ORDERED that Petitioner’s Motion

for Summary Judgment (# 26) is DENIED as moot.

DATED this 16th day of September, 1996.

/s/ Lloyd D. George

Chief United States District Judge