AGO 98002.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98002. DATE: January 12, 1998SUBJECT: Whether Legislation That Would Waive a Motor Vehicle Operator's License Fee for an Individual Agreeing to Become an Organ Donor is Permissible Under the Nebraska Revised Statutes and the United States Constitution.REQUESTED BY: Senator Jim Cudaback, District No. 36WRITTEN BY: Don Stenberg, Attorney General Paul N. Potadle, Assistant Attorney General ANSWER: A law providing for the waiver of motor vehicle licensing fees for organ donors should be permissible depending on the final language of the statute. Careful drafting of the proposed statute should include consideration of potential free exercise of religion and equal protection arguments and liability questions, such as informed consent. Discussion The guiding premise that must be acknowledged when addressing whether the state can waive licensing fees for individuals who elect to become organ donors is that there is no right to operate a motor vehicle guaranteed by the United States Constitution or the laws of Nebraska. In fact, the Nebraska Supreme Court has stated that, "[a] license to operate a motor vehicle is . . . a mere privilege." Hadden v. Aitken, 156 Neb. 215, 222 (1952). Since driving is a privilege granted by the state, and since Nebraska has no constitutional or statutory provision concerning how motor vehicle operators' license fees must be set, the legislature has plenary constitutional authority to set the cost of obtaining a state motor vehicle operators' license. The state may not charge an unreasonable fee. However, generally speaking, courts have been reluctant to find licensing fees "unreasonable" when the State charges too little or nothing for a license. The case law tends to focus on instances where a state charges too much for a fee, there is no rational basis for the fee, or where the fee somehow violates interstate commerce. See Ingels v. Morf, 57 S.Ct. 439 (1937), and Checker Cab Co. v. Romulus, 123 N.W.2d 772, 371 Mich. 232 (1963). Furthermore, there is no case addressing the issue of whether a state may waive the fee for organ donors. A foreseeable constitutional argument might be made by a person whose religion does not allow organ donation. In Quering v. Peterson, 728 F.2d 1121 (1984), aff'd Jensen v. Quering, 472 U.S. 478 (1985), a Nebraska citizen objected on...