Kansas Attorney General Opinion 1992-022

ROBERT T. STEPHAN
ATTORNEY GENERAL
February 14, 1992
ATTORNEY GENERAL OPINION NO. 92- 22
The Honorable Mark Parkinson
State Representative, 14th District
16000 W. 136th Terr.
Olathe, Kansas 66062
Re: Automobiles and Other Vehicles -- Drivers'
Licenses; Motor Vehicle Drivers' License Act --
Restricted Licenses; Persons Aged 14-16
Synopsis: Pursuant to K.S.A. 8-237 the chief law enforcement
officer of a local unit of government can only
recommend to the division of vehicles if an
applicant should be issued a driver's license. The
final decision rests with the division of
vehicles. Cities and counties are not able to use
their home rule powers to deny licenses to persons
under the age of 16 years if the statute is
uniformly applicable and does not grant such
authority. Allowing the raising of the driving age
to 16 years, in some counties but not others, will
not violate an individual's constitutional right to
equal protection. Cited herein: K.S.A. 8-237,
Kan. Const., Art. 12, § 5.
Dear Representative Parkinson:
As representative for the fourteenth district, you have
requested our opinion on whether the age for receiving a
driver's license can be raised from 14 to 16 years.
Specifically you ask the following questions:

"1. Does K.S.A. 8-237(a) allow the governing body of a city
to require that its chief law enforcement officer reject all
applications for persons who are 14 and 15 years of age?
"2. If K.S.A. 8-237(a) provides the county or city governing
body the power discussed in question 1, does the Division of
Motor Vehicles still have the right to reverse the decision of
the local law enforcement officer?"
In the next set of questions, you make the assumption that
K.S.A. 1990 Supp. 8-237(a) does not currently provide a
county or city governing body with the powers that are asked
about in questions 1 and 2. You also assume enactment of
legislation amending K.S.A. 8-237(a) to allow the governing
body of a county to exercise an option to specifically
prohibit any persons 14 or 15 years of age in that county from
receiving a driver's license. Assuming that K.S.A. 8-237(a)
is amended in that manner, you ask the following questions:
"3. Is there anything in Kansas law that would prevent a
county from being given the authority over each of the cities
in the county to deny drivers' licenses to persons aged 14 and
15? In other words, must it be a city option as is currently
contemplated in K.S.A. 8-237(a), or can we simply turn the
entire matter over to the counties?
"4. Is there any prohibition in Kansas law that would need to
be amended to allow counties to have the option to opt out of
the statute that allows 14 and 15 year olds to receive
restricted licenses?
"5. Would providing a statute allowing 14 and 15 year olds
in one county to receive restricted licenses, while not
allowing it in other counties, violate the equal protection
clause of the constitution?"
Primarily you ask whether the chief law enforcement officer of
a city currently has the authority to reject all applications
for persons 14 and 15. K.S.A. 8-237 provides in part that:
"The division of vehicles shall not
issue any driver's license to any person:
"(a) Who is under the age of 16 years,
except that the division may issue a
restricted class C or D license, as
provided in this act, to any person who is
at least 14 years of age upon written

application of the person's parent or
guardian. . . . The governing body of
any city, by ordinance, may require the
application of any person who is under 16
years of age and who resides within the
city to be first submitted to the chief
law enforcement officer of the city. The
board of county commissioners of any
county, by resolution, may require the
application of any person who is under 16
years of age and who resides within the
county and outside the corporate limits of
any city to be first submitted to the
chief law enforcement officer of the
county. . . . The chief law enforcement
officer of any city or county which has
adopted the ordinance or resolution
authorized by this subsection shall make
a recommendation on the application as to
the necessity for the issuance of the
restricted license, and the recommendation
shall be transmitted, with the
application, to the division of vehicles.
If the division finds that it is
necessary to issue the restricted license,
it shall issue a driver's license to the
person. (Emphasis added).
Pursuant to this statute, the governing body of any city and
the board of county commissioners of any county may pass an
ordinance or resolution to require persons under the age of 16
years who reside within that entity's jurisdiction to submit
an application to the chief law enforcement officer of the
city or county; however, the chief law enforcement officer
only makes a recommendation to the division of vehicles on
whether the license should be issued to the applicant. The
power to grant or deny that license vests in the division of
vehicles. Therefore, the chief law enforcement officer does
not currently have the authority to reject applications of 14
and 15 year olds.
In response to questions three and four, cities have home rule
authority pursuant to article 12, section 5, of the Kansas
Constitution and the legislature has granted home rule
authority to counties pursuant to K.S.A. 1991 Supp.
19-101a. However, home rule power is not available in
situations where there are statutes uniformly applicable to
all cities or counties. Blevins v. Hiebert, 247 Kan.

1 (1990). Based on this, cities and counties would not be
able to use their home rule powers to deny licenses to persons
under the age of 16 years if the statute remains uniformly
applicable and does not grant this authority. However, the
legislature could specifically amend the statutes and give
counties and cities home rule authority regarding this issue.
In deciding an equal protection question, the first issue we
must consider is whether driving is a fundamental right.
In Massachusetts Board of Retirement v. Murgia, 96 S.Ct.
2562, 42 US 307 (1976), the Supreme Court held that mandatory
retirement at the age of 50 did not deny the appellee equal
protection. The court cited San Antonio School District v.
Rodriguez, 411 U.S. 1, 93 S.Ct. 1278 (1973), which held
that "Equal Protection Analysis requires strict scrutiny of a
legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental
right or operates to the peculiar disadvantage of a suspect
class." 96 S.Ct. 2562 at 2566.
In the state of Kansas driving is not a fundamental right. In
State v. Finley, 198 Kan. 585 (1967), the court held
that "Kansas has always regarded a license to drive a motor
vehicle upon a public highway to be a privilege." (See
also Lee v. State, 187 Kan. 566 (1960) Marbut v.
Motor Vehicle Department, 194 Kan. 620 (1965), holding the
right to operate a motor vehicle upon public streets is not a
natural right, but a privilege, subject to reasonable
regulation in the public interest.) Therefore, the right to
drive is not a fundamental right and it is not subject to
strict scrutiny under this equal protection analysis.
Furthermore, licensing of drivers many be subject to
reasonable regulation in the public interest.
Next, we must consider whether age places an individual in a
suspect class. In Murgia the court held that "the class
of uniformed state officers over 50 [did not] constitute a
suspect class for purposes of equal protection analysis.
Rodriguez, supra 411 U.S. at 28, 93 S.Ct. at 1294,
observed that a suspect class is one 'saddled with such
disabilities, or subjected to such a history of purposeful
unequal treatment, position of political powerlessness as to
command extra-ordinary protection from the majoritarian
political process." 96 S.Ct.at 2567. The court also held
that "old" age does not define a 'discrete and insular group,
U.S.V. Caveine Products Co., 304 U.S. 144, 152-153, n. 4,
58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938), in need of

extraordinary protection from the majoritarian political
process." Id.
Although the Murqia case addresses "old" age, the rational
that was used in the case can be applied to the issue of 14
and 15 year olds receiving drivers' licenses. 14 and 15
year olds have not been recognized as a suspect class by the
courts. They are not "saddled with disabilities" or subject
to a history of purposeful unequal treatment. Therefore,
legislation which treats this class differently is not subject
to strict scrutiny under the equal protection analysis as a
suspect class.
In conclusion, allowing the raising of the driving age to 16
in some counties but not others will not violate an
individual's constitutional right to equal protection.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
RTS:JLM:MJS:bas