Request By:
Mr. Tony Miller
Circuit Court Clerk
Jefferson County Circuit Court
Louis D. Brandeis - Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ann M. Sheadel, Director, Civil & Environmental Law Division
This is in response to your recent letter in which you ask for an Opinion regarding the date on which you should begin to implement the procedures outlined in House Bill 43, which relates to motor vehicle operator's licenses and which amends KRS Chapter 159, KRS Chapter 186, and KRS 24A.170. Specifically, you would like to know on what date you should implement the requirements that:
Any applicant for a permit [and any applicant for an operator's license] who is under the age of eighteen (18) who has not graduated from high school shall provide proof issued by his school within the preceding thirty (30) days that the applicant is currently enrolled or has been enrolled in the prior semester of school and is not or has not been found academically deficient. In the case of a student being schooled at home, a statement from his parent or guardian that he is being schooled at home and is not academically deficient shall be provided.
[Sections 3(4) and 4(4) of Act of April 4, 1990, Chapter 234, 1990 Advance Legislative Service 626 at 628, 629, amending KRS 186.450 and KRS 186.470.] An applicant who does not provide this proof will not qualify for a permit or an operator's license.
You point out in your letter that it is your understanding that this Act took effect on July 13, 1990. You also state that the Jefferson County Public Schools are under the impression that your office will not be seeking the required proof from applicants until the end of January, 1991. You ask whether you should begin immediate implementation of the requirements of the Act; if not, you ask for an opinion regarding when you should begin such implementation.
You are correct in your statement that the Act took effect on July 13, 1990. The requirements of the Act should be implemented immediately upon that date unless such immediate implementation would cause the Act to be applied retroactively without statutory authorization.
In Kentucky, "[n]o statute shall be construed to be retroactive, unless expressly so declared." KRS 446.080. We have examined the Act in question and have found no express declaration in the Act that it is to be appliedretroactively. Accordingly, the Act should not be implemented in any way that would cause it to be applied retroactively.
A statute is considered to be applied retroactively if it:
"takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past."
Cassidy v. Adams, 872 F.2d 729, 733 (6th Cir. 1989), quoting 73 Am.Jur.2d, Statutes, § 347. Seealso Peach v. 21 Brands Distillery, Ky. App., 580 S.W.2d 235 (1979). The Act that we are examining may, in fact, attach a new disability in certain situations, because it places new restrictions on the ability of certain applicants to obtain permits or operator's licenses. If immediate implementation of the requirements of the Act will attach this new disability to applicants in respect to transactions already past, i.e., to transactions that occurred before the July 13, 1990 effective date of the Act, then such immediate implementation of the Act will be considered a retroactive application of the Act and should not occur.
The Act requires applicants for driving permits and operator's licenses who are under the age of eighteen and who have not graduated from high school to provide proof of two things: (1) that the applicant is currently enrolled or has been enrolled in the prior semester of school; and (2) that the applicant is not or has not been found academically deficient. We will examine each of these required proofs to determine whether immediate implementation of the requirement will cause a retroactive application of the Act.
1. Proof of Enrollment: Immediate implementation of the first requirement, i.e., that the applicant provide proof that he or she is currently enrolled or has been enrolled in the prior semester of school, will not be a retroactive application of the Act when it is applied to applicants who either are currently enrolled in school or have been enrolled in school in the prior semester. Clearly, these applicants will have no new disability placed on them by the Act because there will be no new restriction on their ability to obtain permits or operator's licenses.
Neither will the immediate implementation of the first requirement be a retroactive application of the Act when it is applied to applicants who are not enrolled in school because they have withdrawn from school. Although these applicants will have a disability placed on them, and will be newly restricted from obtaining permits or operator's licenses, this disability will not be placed on them in respect to transactions already passed. Rather, this disability will be placed on the applicants as the result of the applicants' current actions of not enrolling in school. Any applicant who either has withdrawn from school before July 13, 1990 or will withdraw from school after July 13, 1990 may re-enroll in school until he or she is twenty-one years of age. If the applicant chooses not to re-enroll in school, that is a present choice, not a past transaction. Therefore, any disability placed on applicants because they have withdrawn from school and have chosen not to re-enroll will not be placed on them in respect to transactions already passed and will not be a retroactive application of the Act.
Immediate implementation of the first requirement of the Act will be a retroactive application of the Act, however, if it is applied to applicants who will not be considered as enrolled in school because they have "dropped out" of school pursuant to Section 1(1) of the Act. That section of the Act provides that a "student shall be deemed to have dropped out of school when he has nine (9) or more unexcused absences in the preceding semester. " 1 [Section 1(1) of Act of April 4, 1990, Chapter 234, 1990 Advance Legislative Service 626, amending KRS Chapter 159.] If the requirements of the Act are implemented immediately, it is our understanding that the "preceding semester" will be the semester that ended in May of 1990, which obviously is before the July 13, 1990 effective date of the Act. Accordingly, applicants who will not be considered as enrolled in school because they have "dropped out" not only will have a new disability placed on them because they no longer will qualify for a permit or an operator's license, but they also will have this disability placed on them in respect to transactions already passed, i.e., absences from school that occurred before the effective date of the Act. Therefore, if the first requirement is implemented immediately with respect to applicants who have "dropped out" of school, the Act will be applied retroactively.
For these reasons, it is our opinion that the first requirement regarding proof of enrollment may be implemented immediately if it is limited to requiring the applicants who are covered by the Act to provide proof of enrollment based only on whether the applicants have withdrawn from school. Requiring the applicants to provide proof of enrollment based on whether the applicants have "dropped out" of school as defined in Section 1(1) of the Act should not be implemented immediately, because such immediate implementation would cause the Act to be applied retroactively.
2. Proof of Not Being Academically Deficient: Immediate implementation of the second requirement, i.e., that the applicant provide proof that he or she is not or has not been found academically deficient, will be a retroactive application of the Act if it bars an applicant from qualifying for a permit or an operator's license. Section 1(1) of the Act defines "academically deficient" as "not receiv[ing] passing grades in at least four (4) courses in the preceding semester. " [Section 1(1) of Act of April 4, 1990, Chapter 234, 1990 Advance Legislative Service 626, amending KRS Chapter 159.] As noted above, if this requirement is implemented immediately, the "preceding semester" will be the semester that ended in May of 1990, which is before the July 13, 1990 effective date of the Act. Accordingly, for the same reasons as discussed above, if this requirement is implemented immediately with respect to applicants who are "academically deficient, " the Act will be applied retroactively. Therefore, it is our opinion that the second requirement regarding proof of not being academically deficient should not be implemented immediately.
In sum, it is our opinion that the Act's requirement that applicants for driving permits and operator's licenses who are under the age of eighteen and who have not graduated from high school provide proof that they are currently enrolled or have been enrolled in the prior semester of school may be implemented immediately if it is limited to requiring the applicants to provide this proof based only on whether the applicants have withdrawn from school; requiring the applicants to provide proof of enrollment based on whether the applicants have "dropped out" of school as defined in Section 1(1) of the Act should not be implemented immediately, because such immediate implementation would cause the Act to be applied retroactively without statutory authorization. In addition, it is our opinion that the Act's requirement that these applicants provide proof that they are not or have not been found academically deficient should not be implemented immediately, because such immediate implementation would cause the Act to be applied retroactively without statutory authorization.
As to your question regarding when you should begin to implement those requirements of the Act that will not be implemented immediately, it is our opinion that those requirements should be implemented at any future date in which the "preceding semester" referred to in the Act will have occurred after July 13, 1990. From the information that you have supplied to us, it is our understanding that this will be the case at the end of January, 1991, at which time the "preceding semester" will be the Fall, 1990 semester. In the meantime, those parts of the Act that should not be implemented immediately should not be applied to any applicants.
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