April 7, 2004

ATTORNEY GENERAL OPINION NO. 2004- 7

Jane E. Nohr

Assistant Attorney General

Kansas Bureau of Investigation

1620 S.W. Tyler

Topeka, Kansas 66612

Re:	State Departments; Public Officers and Employees--Private Investigative or Security Operations--Licensure; Qualifications; Constitutionality of United States Citizenship Requirement

Synopsis:	Requiring United States citizenship for licensure as a private detective violates the Equal Protection Clause of the 14th Amendment to the United States Constitution. Cited herein: K.S.A. 2003 Supp. 75-7b04; U.S. Const., Amend XIV.

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Dear Ms. Nohr:

You inquire whether requiring United States citizenship for licensure as a private detective offends the Equal Protection Clause of the 14th Amendment to the United States Constitution, which prohibits a state from denying to any person "the equal protection of the laws."1

K.S.A. 2003 Supp. 75-7b04 provides, in part:

"Before an application for a [private detective] license may be granted, the applicant, or if the applicant is an organization, all of the officers, directors, partners or associates shall . . . be a citizen of the United States."

The effect of this restriction is to prohibit all aliens2 from obtaining private detective licenses in the State of Kansas.

The United States Supreme Court has considered similar issues on at least three occasions3 and has invalidated, under the Equal Protection Clause, United States citizenship requirements for licensure as an attorney, notary public, and civil engineer.4

In In re Griffiths,5 a resident alien successfully challenged a Connecticut court rule restricting admission to that state's bar to United States citizens. Because classifications based upon alienage are "inherently suspect and subject to close judicial scrutiny," the Court applied a "strict scrutiny" review which required the State to justify its classification by demonstrating "that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose or the safeguarding of its interest."6

The State attempted unsuccessfully to decrease the level of judicial scrutiny to the "rational basis" standard7 by arguing that, as officers of the court, attorneys fall within the "political function" exception that allows exclusion of aliens from "positions intimately related to the processes of democratic self-government."8 However, the Court rejected the State's position, concluding that while lawyers have been leaders in government, they are not "officials of government by virtue of being lawyers."9

The Griffiths rationale was applied in Examining Board of Engineers v. Otero,10 and in Bernal v. Fainter,11 where the United States Supreme Court struck United States citizenship requirements for civil engineers and notary publics.

We discern no difference constitutionally between a private detective license and a license to be a notary public or to practice law or civil engineering. Therefore, it is our opinion that the requirement of United States citizenship for licensure as a private detective violates the Equal Protection Clause of the 14th Amendment to the United States Constitution.

We note that federal law provides that certain aliens are ineligible for professional licenses issued by a state agency.12 In an Equal Protection challenge, it is unclear what level of scrutiny a court would apply.13 However, as the issue here is whether a private detective license can be denied because the applicant is not a United States citizen, it is our opinion that the Equal Protection Clause prohibits such denial. We reserve for another day the question of whether the Equal Protection Clause prohibits discrimination between different classifications of aliens who apply for private detective licensure.

Sincerely,

Phill Kline

Attorney General of Kansas

Mary Feighny

Assistant Attorney General

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