In the Matter of to Establish Birth Facts of J.P. Harris ~ Appeal of: DOT ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of Petition to Establish :
Birth Facts of James Percell Harris :
:
Appeal of: Department of : No. 1195 C.D. 2021
Transportation : Argued: November 14, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 27, 2023
The Department of Transportation (DOT) appeals from the
Philadelphia County Common Pleas Court’s (trial court) October 20, 2021 decree
(October 20 Decree) that established birth facts for James Percell Harris (Harris).
The sole issue before this Court is whether the trial court violated the separation of
powers doctrine by directing that DOT treat its October 20 Decree as the equivalent
of a birth certificate so that Harris can obtain a REAL ID driver’s license or
identification card (ID), or a non-REAL ID driver’s license or ID. After review, this
Court reverses in part and affirms in part.
On May 6, 2021, Harris filed a Petition to Establish Birth Facts
(Petition) in the trial court. Therein, he alleged:
[Harris], by and through his undersigned counsel
[(Counsel)], hereby petitions the [trial c]ourt for a [d]ecree
establishing his birth facts for the purpose of obtaining a
Pennsylvania [ID] and a delayed birth certificate. In
support of his [P]etition, [Harris] avers as follows:
1. [Harris], an indigent, 77-year-old resident of this
county, was born on December 25, 1943[,] to Rosalee
Sims and Charles Edward Harris in Rice, Prince Edward
County, Virginia.
2. [Harris] seeks to establish his birth facts by this
[P]etition.
3. [Harris] has an immediate need for proof of his birth
facts in order to procure a government photo ID, [to]
qualify for government assistance, [to] engage in banking
transactions and [to] enter government buildings and
airports, among other things.
4. No birth certificate was issued upon [Harris’s] birth.
5. [Harris’s] mother, Rosalee Sims, gave birth at her
sister’s Rice, Virginia home. [Harris] was delivered by a
midwife. For reasons unknown to [Harris], his birth was
never registered with the state of Virginia, and Virginia
has no record of his birth. A true and correct copy of the
Virginia acknowledgement that no such record is on file is
attached hereto as Exhibit 1.
6. [Harris] has resided in Pennsylvania for more than six
decades. His previous Philadelphia addresses included
[sic] 3724 Dover Street, 3527 N. 15th Street, 1712 Peach
Street[,] and 1610 W. Lehigh Avenue. From January 2018
through the present, he has resided at 1916 Berkshire
Street, Apt. 2, Philadelphia, PA 19124.
7. The Social Security Administration issued a social
security number and social security card[1] to [Harris] at a
time when no birth certificate was required for the
issuance of a social security card.
8. The Social Security Administration acknowledges
[Harris’s] birthdate as December 25, 1943, as shown in the
correspondence attached hereto as Exhibit 2.
9. The Philadelphia Board of Elections likewise
acknowledges [Harris’s] birthdate, as shown on the voter
registration certificate attached hereto as Exhibit 3.
1
Counsel informed the trial court that Harris had lost his social security card. See R.R. at
47a.
2
10. [Harris’s] cousins, Virginia Sims Martinez and Sarah
Alice Holmes, both of whom lived with him at the time of
his birth[,] and for several years thereafter, have attested
to [Harris’s] identity and birthdate as averred above. A
true and correct copy of their verifications are attached as
Exhibit 4 and 5 hereto.
11. Without a birth certificate, [Harris] has been unable to
prove his identity, update his voter registration, apply for
a passport[,] and seek assistance from the federal, state and
municipal government[s].
12. Pennsylvania’s procedure for obtaining a REAL[] ID
likewise requires a birth certificate or passport, among
other documents. [Harris] has neither of these documents.
Moreover, [DOT] refuses to accept the voter registration
card, Social Security document and other documents listed
above in lieu of a birth certificate.
13. A Certificate of [United States (]U.S.[)] Citizenship
from the Department of Homeland Security, in turn,
requires either a birth certificate, Certificate of
Naturalization or valid U.S. Passport.
14. A U.S. Passport application likewise requires the
submission of a birth certificate as proof of citizenship.
15. [Harris] has never been convicted of a crime. He was
arrested once but found not guilty. . . .
16. There are no judgments or decrees of like character of
record against [Harris].
17. Virginia law permits the issuance of a delayed birth
certificate where appropriate. . . .
18. The authority of the [trial c]ourt to issue an [o]rder
establishing [Harris’s] birth record is set forth in [Section
713 of the Probate, Estates and Fiduciaries Code (Probate
Code),] 20 [Pa.C.S.] § 713[.]
WHEREFORE, [Harris] respectfully requests that th[e
trial c]ourt, after a hearing on this [P]etition, enter the
proposed form of [d]ecree attached, providing that the
[d]ecree shall be sufficient proof of identity for use by
[Harris] in securing a Photo [ID], a REAL[] ID, driver’s
3
license, or comparable official [ID] from [DOT], and shall
be sufficient in lieu of a birth certificate for use by all
Pennsylvania government agencies, authorities and
offices, including but not limited to public housing offices,
and authorize and direct the Virginia state registrar to issue
a delayed birth certificate to [Harris], as follows:
Date of birth: December 25, 1943
Full name at time of birth: James Percell Harris
Place of birth: Rice, Prince Edward County, Virginia
Gender at birth: Male
Mother’s name: Rosalee Sims
Birthplace of mother: Rice, Prince Edward County,
Virginia
Race of mother (as required by Virginia regulation
12VAC5-550-100B): African American
Father’s name: Charles Edward Harris
Birthplace of father: Rice, Prince Edward County,
Virginia
Race of father (as required by Virginia regulation
12VAC5-550-100B): African American
Subsequent name changes: [N]one
Subsequent gender changes: [N]one
Reproduced Record (R.R.) at 9a-12a.
On May 12, 2021, the trial court entered a Rule to Show Cause,
scheduling a hearing for June 15, 2021, and requiring service upon all interested
parties. The hearing was continued to June 16, 2021. On June 9, 2021, Harris filed
a Verification of Service reflecting that Harris had served the Virginia Attorney
General, the Virginia General Counsel, and a Senior Assistant Attorney General in
the Health Services Section of the Virginia Office of Attorney General, along with
the Director and State Registrar of the Virginia Office of Vital Records. On June
15, 2021, Harris filed a Supplemental Verification of Service, wherein Harris
verified that he served the same individuals, and that notice of the Rule to Show
Cause and Order Continuing the Hearing had been published in the Legal
Intelligencer and Metro.
4
On June 16, 2021, the trial court conducted the hearing, at which only
Harris and Counsel appeared. Counsel described the Petition and Harris’s
circumstances, and referenced the exhibits attached thereto, including Harris’s
cousins’ affidavits vouching for his birth as represented in the Petition.2 Thereafter,
the trial court stated:
I do not have any questions, [Counsel]. I think you’ve
adequately summarized what your client is facing and also
adequately put into the record his place of birth[,]
whatever other documents are attached to the [P]etition, as
well as the Social Security [sic], so I will grant your
[P]etition today. It is granted.
R.R. at 47a.
On June 17, 2021, the trial court filed a decree3 (June 17 Decree)
granting the Petition establishing Harris’s birth facts and further ordering:
2. This [June 17] Decree shall be sufficient proof of
identity for use by [Harris] in securing a REAL[] ID or
driver’s license from [DOT], or comparable official [ID],
and shall be sufficient in lieu of a birth certificate for use
by all Pennsylvania and federal government agencies,
authorities and offices.
3. The Virginia Department of Health is hereby authorized
and directed to issue a delayed birth certificate to [Harris]
reflecting the foregoing birth facts.
R.R. at 50a-51a.
On June 18, 2021, Counsel contacted DOT regarding the June 17
Decree before submitting an application to DOT for an ID.4 By June 22, 2021 email,
2
On the same date, the Pennsylvania State Police notified the trial court that Harris’s
fingerprint cards had been searched in the Criminal Records and Identification Division Central
Repository, and stated: “This person is not subject to [the Criminal History Record Information
Act,] 18 P[a.]C.S. [§§] 91[01-9106], and the fingerprints have been destroyed.” R.R. at 52a.
3
The decree is dated June 16, 2021.
4
Counsel also contacted the Virginia State Attorney General’s Office, seeking the issuance
of a delayed birth certificate for Harris, and forwarded to it the June 17 Decree. By August 31,
5
a DOT representative notified Harris that “[a] standard [non-REAL ID] can be issued
with [the] doc[ument] you provided[.] No[t] sure about REAL ID at this point[.]”
R.R. at 182a. That same day, Counsel responded that he and Harris would visit the
local office to apply for a regular ID, but that Harris “hasn’t been able to get a
replacement [S]ocial [S]ecurity card, because he doesn’t have a photo ID necessary
to do so.” R.R. at 182a. The DOT representative answered: “That definitely will be
an issue; a [S]ocial [S]ecurity card is required for issuance of [an] ID.” R.R. at 181a.
Counsel retorted: “But it’s a catch-22, since [Harris] needs the ID to get a
replacement [Social Security] card. What else might be acceptable?” Id. The DOT
representative replied: “A receipt from [the Social Security Administration] that
[Harris] has applied for a replacement [S]ocial [S]ecurity card and they are sending
it in two weeks plus a W2 or copy of his [S]ocial [Security number].” Id. Counsel
explained: “[Harris] doesn’t have a W2; he is indigent, which is why I am
representing him on a pro bono basis, and [he] can’t apply for a replacement card
without a photo ID, as I previously explained.” Id.
On July 6, 2021, Counsel informed the DOT representative: “Harris has
been able to obtain a duplicate [S]ocial [S]ecurity card, so we will be coming in to
apply for a photo ID and/or REAL[] ID tomorrow.” R.R. at 180a. Another DOT
representative then notified Counsel that “the documents provided cannot be
accepted in lieu of the birth certificate. [Harris] will need his delayed birth
certificate, [S]ocial [S]ecurity card and two proofs of address.” R.R. at 179a.
Counsel inquired: “Even for a regular photo ID? I’ve been doing this for clients for
2021 email, the Virginia State Attorney General’s Office informed Counsel: “[I]t seems you’ll
need to authenticate the [June 17 Decree] in the Circuit Court in the county of birth, pursuant to
Virginia Code Sec[tion] 32.1-260[, Va. Code Ann. 32.1-260 (1950), as amended,] . . . . Please
notice my client on that filing, pursuant to Virginia Code Sec[tion] 32.1-260(D)[, Va. Code Ann.
32.1-260(D) (1950), as amended,], so Vital Records is given the opportunity to respond.” R.R. at
148a.
6
years.” Id. On July 7, 2021, Deputy Chief Counsel, Phillip Bricknell, from the
Governor’s Office of General Counsel, responded: “The relevant statutes and
regulations say what they say. [Harris] is required to produce a delayed birth
certificate, [S]ocial [S]ecurity card, and two proofs of address to support his
application for an [ID].” R.R. at 178a.
On July 15, 2021, DOT filed a Motion for Reconsideration (Motion) of
the June 17 Decree, arguing that DOT had not received proper notice as a necessary
party to the matter. The trial court granted DOT’s Motion and ordered DOT to file
a response to the Petition within 20 days. On August 4, 2021, DOT filed a Response
in Opposition including a Motion to Dismiss the Petition (DOT’s Response). On
September 7, 2021, Harris filed a Reply Memorandum to DOT’s Response and an
Answer with New Matter. On September 23, 2021, DOT filed a Reply to New
Matter.
On October 20, 2021, the trial court entered the October 20 Decree,
again granting the Petition establishing Harris’s birth facts and ordering other relief
as follows:
1. The [trial c]ourt finds, upon sufficient evidence thereof,
the following birth facts applicable to [Harris]:
Date of birth: December 25, 1943
Full name at time of birth: James Percell Harris
Place of birth: Rice, Prince Edward County, Virginia
Gender at birth: Male
Mother’s name: Rosalee Sims
Birthplace of mother: Rice, Prince Edward County,
Virginia
Race of mother (as required by Virginia regulation
12VAC5-550-100B): African American
Father’s name: Charles Edward Harris
Birthplace of father: Rice, Prince Edward County,
Virginia
Race of father (as required by Virginia regulation
12VAC5-550-100B): African American
Subsequent name changes: [N]one
7
Subsequent gender changes: [N]one
2. This Decree shall be sufficient proof of identity for use
by [Harris] in securing a REAL[] ID or driver’s license
from [DOT], or comparable official [ID], and shall be
sufficient in lieu of a birth certificate for use by all
Pennsylvania and federal government agencies,
authorities and offices.
3. The Virginia Department of Health is hereby authorized
and directed to issue a delayed birth certificate to [Harris]
reflecting the foregoing birth facts.
R.R. at 213a. On October 27, 2021, DOT appealed to this Court.5
On November, 1, 2021, the trial court directed DOT to file a Statement
of Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure (Rule) 1925(b) (Rule 1925(b) Statement). On November 10, 2021, DOT
5
Harris argues that DOT mistakenly relies on Section 762(a)(3) of the Judicial Code, 42
Pa.C.S. § 762(a)(3), as the basis for this Court’s jurisdiction, and that proper jurisdiction for this
appeal lies in the Pennsylvania Superior Court. Harris correctly points out that Section 762(a)(3)
of the Judicial Code pertains only to appeals from Commonwealth agencies which were taken to
the common pleas court under Section 933 of the Judicial Code, 42 Pa.C.S. § 933, relating to
appeals from government agencies. Here, there was no appeal from a governmental agency to the
trial court, rather, DOT simply appealed from the trial court’s decision. Nonetheless, Pennsylvania
Rule of Appellate Procedure (Rule) 741(a) provides:
The failure of an appellee to file an objection to the jurisdiction of
an appellate court on or prior to the last day under these rules for the
filing of the record shall, unless the appellate court shall otherwise
order, operate to perfect the appellate jurisdiction of such appellate
court, notwithstanding any provision of law vesting jurisdiction of
such appeal in another appellate court.
Pa.R.A.P. 741(a). Harris acknowledges that he did not object to this Court’s jurisdiction within
the time permitted by Rule 741(a) and, thus, concedes he has waived the issue. Nonetheless, he
raises the issue to counter DOT’s statement of jurisdiction. Accordingly, because Harris’s failure
to object to this Court’s jurisdiction operated to perfect jurisdiction in this Court, this Court shall
address the merits of the appeal.
“Our standard of review of a non-jury trial is to determine whether the findings of the trial
court are supported by [substantial] evidence, and whether an error of law was committed.” Slack
v. Slack, 256 A.3d 472, 477 n.9 (Pa. Cmwlth. 2021) (quoting City of Phila. v. Galdo, 181 A.3d
1289, 1291 n.2 (Pa. Cmwlth. 2018), aff’d, 217 A.3d 811 (Pa. 2019)).
8
filed its Rule 1925(b) Statement. On March 31, 2022, the trial court issued its
opinion pursuant to Rule 1925(a) (Rule 1925(a) Opinion).6
DOT argues that the trial court abused its discretion, committed an error
of law, and violated the separation of powers doctrine by directing that DOT treat
the October 20 Decree as the equivalent of a birth certificate for purposes of issuing
Harris a REAL ID driver’s license or ID, or a non-REAL ID driver’s license or ID.Initially, DOT is charged with issuing driver’s licenses and IDs in
Pennsylvania. Statutory and regulatory provisions that govern DOT’s ability to issue
a driver’s license or ID to an applicant include: the REAL ID Act of 20057 (REAL
ID Act); the Pennsylvania REAL ID Compliance Act, Act of May 25, 2017, P.L. 6,
74 P.S. §§ 401-409 (Pa. Compliance Act); Section 1510 of the Vehicle Code, 75
Pa.C.S. § 1510 (relating to issuance and content of driver’s licenses); relevant
Department of Homeland Security (DHS) Regulations contained in Title 6, Part 37
of the Code of Federal Regulations, 6 C.F.R. §§ 37.1-37.71 (relating to REAL ID
driver’s licenses and IDs); and Section 91.4 of DOT’s Regulations, 67 Pa. Code §
91.4 (relating to ID applications). DOT contends that the trial court’s October 20
Decree intrudes on its authority under federal and state law to evaluate applications
and issue drivers’ licenses and IDs.
Relevant Federal Law
Section 201 of the REAL ID Act provides, in pertinent part:
In [the REAL ID Act], the following definitions apply:
(1) Driver’s license. The term ‘driver’s license’—
6
The Homeless Advocacy Project (HAP) filed an Amicus Curiae Brief supporting
affirmance of the trial court’s October 20 Decree.
7
Act of May 11, 2005, P.L. 109-13, 119 Stat. 311, as amended.
9
(A) means a motor vehicle operator’s license, as defined
in [S]ection 30301 of . . . [the] [U.S.] Code[, 49 U.S.C.
§ 30301]; and
(B) includes driver’s licenses stored or accessed via
electronic means, such as mobile or digital driver’s
licenses, which have been issued in accordance with
regulations prescribed by the Secretary [of DHS
(Secretary)].
(2) Identification card. The term ‘identification card’—
(A) means a personal [ID], as defined in [S]ection 1028(d)
of . . . [the] [U.S.] Code[, 18 U.S.C. § 1028(d)], issued by
a [s]tate; and
(B) includes [IDs] stored or accessed via electronic means,
such as mobile or digital [IDs], which have been issued in
accordance with regulations prescribed by the Secretary.
(3) Official purpose. The term ‘official purpose’ includes
but is not limited to accessing [f]ederal facilities, boarding
federally regulated commercial aircraft, entering nuclear
power plants, and any other purposes that the Secretary
shall determine.
49 U.S.C. § 30301 note, § 201.
Section 202 of the REAL ID Act provides, in relevant part:
Minimum requirements and issuance standards for
[f]ederal recognition.
(a) Minimum standards for [f]ederal use.
(1) In general. Beginning [three] years after the date of
the enactment of this division, a [f]ederal agency may
not accept, for any official purpose, a driver’s license or
[ID] issued by a [s]tate to any person unless the [s]tate
is meeting the requirements of this section.
(2) State certifications. The Secretary shall determine
whether a [s]tate is meeting the requirements of this
section based on certifications made by the [s]tate to the
Secretary. Such certifications shall be made at such
times and in such manner as the Secretary may
prescribe by regulation.
10
(3) Limitation. The presentation of digital information
from a mobile or digital driver’s license or [ID] to an
official of a [f]ederal agency for an official purpose may
not be construed to grant consent for such [f]ederal
agency to seize the electronic device on which the
license or [ID] is stored or to examine any other
information contained on such device.
(b) Minimum driver’s license and [ID] requirements. To
meet the requirements of this section, a [s]tate shall
include, at a minimum, the following information and
features on, or as part of, each driver’s license and [ID]
issued to a person by the [s]tate:
(1) The person’s full legal name.
(2) The person’s date of birth.
(3) The person’s gender.
(4) The person’s driver’s license or ID number.
(5) A digital photograph of the person, which may be
the photograph taken by the [s]tate at the time the
person applies for a driver’s license or [ID] or may be a
digital photograph of the person that is already on file
with the [s]tate.
(6) The person’s address of principal residence.
(7) The person’s signature.
(8) Security features designed to prevent tampering,
counterfeiting, or duplication of the driver’s license or
[ID] for fraudulent purposes.
(9) A common machine-readable technology, with
defined minimum data elements.
(c) Minimum issuance standards.
(1) In general. To meet the requirements of this
section, a [s]tate shall require, at a minimum,
presentation and verification of the following
information before issuing a driver’s license or [ID]
to a person:
11
(A) A photo identity document, except that a non-
photo identity document is acceptable if it includes
both the person’s full legal name and date of birth.
(B) Documentation showing the person’s date of
birth.
(C) The person’s [S]ocial [S]ecurity account number
or verification that the person is not eligible for a
[S]ocial [S]ecurity account number.
(D) Documentation showing the person’s name and
address of principal residence.
49 U.S.C. § 30301 note, § 202 (emphasis added).
Section 37.1 of DHS’s Regulations states:
(a) Subparts A through E of this part[, 6 C.F.R. §§ 37.1-
37.65,] apply to [s]tates and U.S. territories that choose to
issue driver’s licenses and [IDs] that can be accepted by
[f]ederal agencies for official purposes.
(b) Subpart F[, 6 C.F.R. § 37.71,] establishes certain
standards for [s]tate-issued driver’s licenses and [IDs]
issued by [s]tates that participate in REAL ID, but that are
not intended to be accepted by [f]ederal agencies for
official purpose under [S]ection 202(d)(11) of the REAL
ID Act[, 49 U.S.C. § 30301, note § 202(d)(11)].
6 C.F.R. § 37.1.
Section 37.11 of DHS’s Regulations describe the application and
documents required to be provided and mandates:
(c) Identity. (1) To establish identity, the applicant
must present at least one of the following source
documents:
(i) Valid, unexpired U.S. passport.
(ii) Certified copy of a birth certificate filed with a
[s]tate Office of Vital Statistics or equivalent agency
in the individual’s [s]tate of birth.
12
(iii) Consular Report of Birth Abroad [] issued by the
U.S. Department of State, Form FS-240, DS-1350 or
FS-545.
(iv) Valid, unexpired Permanent Resident Card (Form
I-551) issued by DHS or [Immigration and
Naturalization Service].
(v) Unexpired employment authorization document []
issued by DHS, Form I-766 or Form I-688B.
(vi) Unexpired foreign passport with a valid, unexpired
U.S. visa affixed accompanied by the approved I-94
[F]orm documenting the applicant’s most recent
admittance into the [U.S.]
(vii) Certificate of Naturalization issued by DHS, Form
N-550 or Form N-570.
(viii) Certificate of Citizenship, Form N-560 or Form
N-561, issued by DHS.
(ix) REAL ID driver’s license or [ID] issued in
compliance with the standards established by this part.
(x) Such other documents as DHS may designate by
notice published in the Federal Register.
....
(d) Date of birth. To establish date of birth, an individual
must present at least one document included in paragraph
(c) of this [S]ection.
6 C.F.R. § 37.11 (emphasis added).
Section 37.3 of DHS’s Regulations defines “[b]irth certificate” as “the
record related to a birth that is permanently stored either electronically or physically
at the [s]tate Office of Vital Statistics or equivalent agency in a registrant’s [s]tate
of birth[,]” and “[c]ertified copy of a birth certificate” as “a copy of the whole or
part of a birth certificate registered with the [s]tate that the [s]tate considers to be the
same as the original birth certificate on file with the [s]tate Office of Vital Statistics
or equivalent agency in a registrant’s [s]tate of birth.” 6 C.F.R. § 37.3.
13
Notably, Section 37.11(h) of DHS’s Regulations permits the
establishment of an exceptions process:
A [s]tate [department of motor vehicles] may choose to
establish a written, defined exceptions process for
persons who, for reasons beyond their control, are
unable to present all necessary documents and must
rely on alternate documents to establish identity or
date of birth. Alternative documents to demonstrate
lawful status will only be allowed to demonstrate U.S.
citizenship.
(1) Each [s]tate establishing an exceptions process must
make reasonable efforts to establish the authenticity of
alternate documents each time they are presented and
indicate that an exceptions process was used in the
applicant’s record.
(2) The [s]tate shall retain copies or images of the alternate
documents accepted pursuant to [Section] 37.31 of
[DHS’s Regulations].
(3) The [s]tate shall conduct a review of the use of the
exceptions process, and pursuant to subpart E of this part,
prepare and submit a report with a copy of the exceptions
process as part of the certification documentation detailed
in [Section] 37.55 [of DHS’s Regulations, 6 C.F.R. §
37.55].
6 C.F.R. § 37.11(h) (bold and underline emphasis added). Section 37.13(b)(3) of
DHS’s Regulations states:
States must verify the documents and information required
under [Section] 37.11 [of DHS’s Regulations] with the
issuer of the document. States shall use systems for
electronic validation of document and identity data as they
become available or use alternative methods approved by
DHS.
....
(3) States must verify birth certificates presented by
applicants. States should use the Electronic
Verification of Vital Events [] system or other
14
electronic systems whenever the records are available.
If the document does not appear authentic upon
inspection or the data does not match and the use of an
exceptions process is not warranted in the situation, the
[s]tate must not issue a REAL ID driver’s license or
[ID] to the applicant until the information verifies, and
should refer the individual to the issuing office for
resolution.
6 C.F.R. § 37.13(b)(3).
Relevant State Law
On May 27, 2017, the Pennsylvania General Assembly enacted the Pa.
Compliance Act. Section 3 of the Pa. Compliance Act provides:
[DOT] and any other Commonwealth agency shall
comply with the REAL ID Act . . . and regulations
promulgated under th[e Real ID A]ct. In complying
with the requirements of the REAL ID Act . . . , [DOT]
shall provide an eligible applicant with an option to obtain
either a standard-issued driver’s license or photo [ID] or a
REAL ID. [DOT] shall provide the applicant with a brief
description that reasonably describes the content,
requirements and restrictions of a standard-issued driver’s
license or photo [ID] or a REAL ID.74 P.S. § 403 (emphasis added). Section 1510(b) of the Vehicle Code states, in
pertinent part: “[DOT] shall, upon payment of the required fee, issue an [ID] to any
person [10] years of age or older who has made application therefor in such manner
as [DOT] shall prescribe . . . .” 75 Pa.C.S. § 1510(b) (emphasis added).
Further, Section 91.4(b) of DOT’s Regulations state:
Application for an [ID] by a person other than specified in
subsection (a) [(pertaining to persons in possession of a
Pennsylvania driver’s license)] shall be made at a driver
examination station of this Commonwealth. The applicant
shall provide his name, address, date of birth, and a
document verifying the applicant’s date of birth and
identity. The following are acceptable documents for
proving identity and date of birth:
15
(1) Birth certificate.
(2) Baptismal certificate.
(3) School certificate.
(4) Passport.
(5) Citizenship papers.
(6) Marriage record.
(7) Armed Forces ID [].
(8) Immigration certificate.
(9) Selective service ID [].
(10) Pennsylvania driver’s license.
(11) Pennsylvania [ID].
(12) Pennsylvania camera card.
67 Pa. Code § 91.4(b).
Discussion
DOT contends that its actions in processing and evaluating drivers’
license and ID applications are mandated by the aforementioned federal and state
statutes and regulations, and the trial court’s October 20 Decree improperly
interferes in DOT’s administrative authority.
The Pennsylvania Supreme Court has explained:
The separation of powers doctrine is essential to our
triparte governmental framework and is the cornerstone of
judicial independence. It is inherent in the Pennsylvania
Constitution and makes manifest that the three branches of
government are co-equal and independent, and divides
power accordingly. The governing structure of our
Commonwealth, like the federal government, is divided
into three equal branches, the legislative, see PA. CONST.
art II, § 1 (“The legislative power of this Commonwealth
shall be vested in a General Assembly . . . .”); the
executive, see PA. CONST. art. IV, § 2 (“The supreme
executive power shall be vested in the Governor . . . .”);
and the judicial, see PA. CONST. art. V, § 1 (“The judicial
16
power of the Commonwealth shall be vested in a unified
judicial system . . . .”).
The rationale underlying this separation of powers is that
it prevents one branch of government from exercising,
infringing upon, or usurping the powers of the other two
branches. Thus, to “avert the danger inherent in the
concentration of power in any single branch or body,” no
branch may exercise the functions delegated to another
branch. Jefferson C[nty.] C[t.] Appointed Emp[s.] Ass[’]n
v. P[a.] Lab[.] Rel[s.] B[d.], . . . 985 A.2d 697, 706-07
([Pa.] 2009); see generally Markham v. Wolf, . . . 190 A.3d
1175, 1183 ([Pa.] 2018). The prohibition on one branch
of government encroaching upon a sister branch’s powers
is, in turn, related to the system of checks and balances,
which prevents one branch from acting unchecked.
Jefferson C[nty.], 985 A.2d at 706. For checks and
balances to properly work, each branch must be kept from
controlling or coercing the other. Insuring that each
branch is co-equal and independent is the foundation of
the separation of powers doctrine, and the avoidance of the
concentration of governmental powers in one branch is
essential to our freedom and liberty.
Renner v. Ct. of Common Pleas of Lehigh Cnty., 234 A.3d 411, 419-20 (Pa. 2020).
The dividing lines among the three branches “are
sometimes indistinct and are probably incapable of any
precise definition.” Stander v. Kelley, . . . 250 A.2d [474,]
482 [(Pa. 1969)] (plurality opinion). Under the principle
of separation of the powers of government, however,
no branch should exercise the functions exclusively
committed to another branch.
Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977) (emphasis added). “[DOT]
belongs to the executive branch, and the [trial court] belongs to the judicial branch.
Neither may control the other nor act as the agent for the other.” Smires v. O’Shell,
126 A.3d 383, 391 (Pa. Cmwlth. 2015).
The trial court reasoned in its Rule 1925(a) Opinion that under Section
713 of the Probate Code, 20 Pa.C.S. § 713, the trial court “possesses jurisdiction to
17
establish or amend the birth records of Philadelphia residents.”8 R.R. at 237a.
Section 713 of the Probate Code states:
The provisions of [S]ection 711 [of the Probate Code]
(relating to mandatory exercise of jurisdiction through
orphans’ court division in general), insofar as they relate
to adoptions and birth records, shall not apply to
Philadelphia County. In Philadelphia County the
jurisdiction over adoptions and all proceedings which may
be necessary to be presented to a court for determination
with regard to issues concerning recordation of birth and
birth records or the alteration, amendment or modification
of such birth records or the right to obtain a certified copy
of the same, shall be exercised through the family court
division of the court of common pleas. Whenever a
resident of Philadelphia is entitled to take an appeal from
the action of the Department of Health in connection with
any matters concerning birth records, the appeal shall be
taken to the family court division of the court of common
pleas of Philadelphia. In all other matters in which a
petition is addressed to a court by a resident of
Philadelphia in connection with matters of birth
records, the filing of which petition is not in the nature
of an appeal[,] but is an original proceeding, the
petition shall be determined by the family court
division of the court of common pleas of Philadelphia
[County].
20 Pa.C.S. § 713 (emphasis added). The trial court concluded it “was well within
its jurisdiction to establish [Harris’s birth facts].”9 R.R. at 238a. However, whether
the trial court had jurisdiction over the matter is not at issue here. Rather, the issue
8
Further, under Section 931(a) of the Judicial Code, 42 Pa.C.S. § 931, the courts of
common pleas have unlimited original jurisdiction of all actions and proceedings, except where
exclusive original jurisdiction of an action is vested by statute or rule in another court of the
Commonwealth.
9
The October 20 Decree referenced Section 713 of the Probate Code, and also Section
1550(a) of the Vehicle Code, 75 Pa.C.S. 1550(a), stating that Section 1550(a) of the Vehicle Code
“provides this [trial c]ourt with jurisdiction to hear appeals of [DOT’s] decisions regarding whether
a license shall issue.” R.R. at 212a n.1. Importantly, that matter before the trial court was not an
appeal of a DOT decision but, rather, Harris’s Petition.
18
before this Court is whether the trial court had authority to confer the relief it granted
Harris.
Determining eligibility for a REAL ID driver’s license and/or ID or a
non-REAL ID driver’s license and/or ID are functions legislatively granted to DOT,
an executive agency. The matter presently before this Court is not an appeal from
the trial court’s order reviewing a DOT determination denying Harris a driver’s
license or ID. Harris has not applied, and DOT has not refused his application.10
Rather, DOT has appealed from a trial court declaration that the October 20 Decree
“shall be sufficient proof of identity for use by [Harris] in securing a REAL[] ID or
driver’s license from [DOT] or comparable official identity card . . . .” R.R. at 212a-
213a (emphasis added).
It is DOT’s legislatively mandated role to determine whether an
applicant has satisfied the statutory and regulatory requirements to prove identity.
Section 3 of the Pa. Compliance Act requires DOT to comply with the REAL ID Act
and corresponding DHS Regulations. Section 37.11(c)(1) of DHS’s Regulations
mandates that “[t]o establish identity, the applicant must present at least one of the
following source documents: . . . . (ii) [c]ertified copy of a birth certificate filed with
a [s]tate Office of Vital Statistics or equivalent agency in the individual’s [s]tate of
10
The law is well established that a “[c]ourt may not interfere until an agency has
committed a manifest abuse of discretion or committed an error of law.” Pa. Crime Comm’n v.
Nacrelli, 5 Pa. Cmwlth. 551, 574 (1972).
So long as one may garner from the statute its legislative purpose,
and that purpose is within the constitutional power of the legislature,
the investigative agency may set its own reasonable guidelines to
carry out that legislative purpose. There is no law . . . standing for
the proposition that the statute must set forth such guidelines. A
citizen who believes he has been aggrieved by such guidelines
may always come to the judicial branch to test them for the
protection of his rights.
Nacrelli, 5 Pa. Cmwlth. at 564-65 (emphasis added).
19
birth.” 6 C.F.R. § 37.11(c)(1). DHS’s Regulations define “[b]irth certificate” as
“the record related to a birth that is permanently stored either electronically or
physically at the [s]tate Office of Vital Statistics or equivalent agency in a
registrant’s [s]tate of birth[,]” and “[c]ertified copy of a birth certificate” as “a copy
of the whole or part of a birth certificate registered with the [s]tate that the [s]tate
considers to be the same as the original birth certificate on file with the [s]tate Office
of Vital Statistics or equivalent agency in a registrant’s [s]tate of birth.” 6 C.F.R. §
37.3. Thus, in complying with its statutory mandate, DOT is required to determine
whether an applicant has satisfied the federally mandated requirements, and the
mandates of Vehicle Code Section 1510(b) and DOT Regulation 91.4(b) before
issuing a state ID.The trial court’s preemptive determination that its October 20 Decree
shall be sufficient proof of identity to secure a driver’s license or ID from DOT is
contrary to the explicit legislative and regulatory requirements. See Sweeney.
Similarly, the October 20 Decree attempts to compel “all Pennsylvania and federal
government agencies, authorities and offices” to accept the October 20 Decree
without regard to relevant statutory requirements binding such agencies. R.R. at
213a. Thus, the trial court’s October 20 Decree violates the separation of powers
doctrine. This Court is therefore constrained to reverse Paragraph 2 of the trial
court’s October 20 Decree.
Importantly, Section 37.11(h) of DHS’s Regulations permits states to
“establish a written, defined exceptions process for persons who, for reasons beyond
their control, are unable to present all necessary documents and must rely on
alternate documents to establish identity or date of birth.” 6 C.F.R. § 37.11(h).
Neither the Pennsylvania General Assembly nor DOT11 has done so.
11
Section 1510(b) of the Vehicle Code permits DOT to issue an ID “to any person [10]
years of age or older who has made application therefor in such manner as [DOT] shall prescribe
20
The U.S. Supreme Court has declared that “the essential and patently
unobjectionable purpose of state government [is] to serve the citizens of the
[s]tate.” McBurney v. Young, 569 U.S. 221, 236 (2013) (emphasis added) (quoting
Reeves, Inc. v. Stake, 447 U.S. 429, 442 (1980)). DHS has authorized DOT to
furnish relief, and although not mandated by Section 37.11(h) of DHS’s
Regulations, DOT can best serve some of the Commonwealth’s most vulnerable
citizens by establishing a compliant exceptions process for those unable to
produce a birth certificate. See Applewhite v. Commonwealth, 54 A.3d 1, 4 (Pa.
2012) ([I]ndividuals lacking [IDs] are “members of some of the most vulnerable
segments of our society (the elderly, disabled members of our community, and the
financially disadvantaged).”). The lack of identification can impair an individual’s
right to vote, ability to travel by air, enter public buildings, and access public
assistance.12 Herein, it is undisputed that Harris has lived in Pennsylvania for
approximately 60 years, his birth was not registered when he was born in Virginia
or thereafter and, thus, there is no birth certificate on file with Virginia’s Office of
Vital Statistics. Harris does not have the documents necessary to qualify for a REAL
ID or non-REAL ID.Referencing the “vital nature” of birth certificates in modern times, the
U.S. District Court for the District of Rhode Island recognized:
[W]ithout that slip of paper, a person’s identity and
legitimacy are at risk in a variety of aspects. In one way
or another, the right to vote, the right to enroll in public
schools, the right to participate in certain social programs,
. . . .” 75 Pa.C.S. § 1510(b). Section 91.4(b) of DOT’s Regulations, not the Vehicle Code, dictates
acceptable documents for proving identity and date of birth. Thus, DOT could establish the
exceptions process envisioned in Section 37.11(h) of DHS’s Regulations.
12
HAP asserts in its brief that “[s]imple, everyday activities can become significant
challenges for people without identification, including renting an apartment or hotel room,
completing forms to start a new job, obtaining prescription medication, entering a government
building, and applying for public benefits.” HAP Br. at 4.
21
the right to travel internationally, are all dependent on the
production of a birth certificate.
deLeiris v. Scott, 642 F. Supp. 1552, 1565-66 (D.R.I. 1986). Harris’s inability to
obtain a state ID due to his lack of a birth certificate similarly burdens his rights.
Accordingly, this Court urges the General Assembly or DOT to implement an
exceptions process consistent with 6 C.F.R. § 37.11(h) of DHS’s Regulations for
Harris and individuals who share Harris’s circumstances. Nonetheless, because
DOT has not provided an exceptions process, the trial court may not preemptively
intrude upon DOT’s statutorily mandated responsibilities.13
For all of the above reasons, Paragraph 2 of the trial court’s October 20
Decree is reversed, and the trial court’s October 20 Decree is affirmed in all other
respects.
_________________________________
ANNE E. COVEY, Judge
13
Given that the trial court’s October 20 Decree violates the separation of powers doctrine
and, further, that Harris has not yet submitted an application for an ID which DOT has refused and
for which there is no appeal before this Court, this Court may not decide whether such refusal is
erroneous.
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of Petition to Establish :
Birth Facts of James Percell Harris :
:
Appeal of: Department of : No. 1195 C.D. 2021
Transportation :
ORDER
AND NOW, this 27th day of March, 2023, the Philadelphia County
Common Pleas Court’s October 20, 2021 decree (Decree) is REVERSED in part and
AFFIRMED in part. Paragraph 2 of the Decree is REVERSED. The Decree is
AFFIRMED in all other respects.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of Petition to Establish :
Birth Facts of James Percell Harris :
: No. 1195 C.D. 2021
Appeal of: Department of : ARGUED: November 14, 2022
Transportation :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY
SENIOR JUDGE LEADBETTER FILED: March 27, 2023
I concur in the result reached by the majority in light of the procedural posture
of this case. I would like to make clear, however, that if an application for a REAL
ID driver’s license or identification card (ID), or a non-REAL ID driver’s license or
ID card is denied by the Department of Transportation (DOT), this Court would have
authority to review that decision for abuse of discretion and, in that circumstance,
there would be no separation of powers issue. See Section 1550 of the Vehicle Code,
75 Pa.C.S. § 1550 (judicial review section providing, in pertinent part, that “[a]ny
person who has been denied a driver’s license . . . by [DOT] shall have the right to
appeal to the court vested with jurisdiction of such appeals by or pursuant to Title
42 . . . .”). Further, under the undisputed facts of this matter, I believe it would be a
manifest abuse of discretion if DOT were to refuse to exercise its discretion to issue
at least a non-REAL ID card to Mr. Harris and/or to establish an exception process
for issuance of a REAL ID to persons in situations like that of Mr. Harris, i.e., who
are unable to obtain a birth certificate through no fault of their own.1
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
1
It would appear that the order issued by the Court of Common Pleas would satisfy the
documentary requirement of the federal statute, Section 202 of the REAL ID Act of 2005, 49
U.S.C. § 30301 note, § 202, (“non-photo identity document is acceptable if it includes both the
person’s full legal name and date of birth”), although it does not satisfy the regulations
promulgated by either the Department of Homeland Security or DOT.
2