The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

COUNTY CLERKS:

MARRIAGES:

SOCIAL SECURITY NUMBERS:

Requirement to provide social security number on marriage license applications

Under section 2(1) of the Marriage License Act, MCL 551.102(1), a county clerk may issue a marriage license to an applicant who fails to provide his or her social security number on the application if the person has never been issued a social security number and so states on the affidavit for license to marry or in a separate sworn statement made a part of the application.

Where the applicant for a marriage license does not provide a social security number on the application for the license, the county clerk is not authorized to investigate the underlying reason why the applicant has failed to provide a social security number. However, the Act does not prohibit a county clerk from forwarding significant information to the appropriate authorities where, in the opinion of the clerk, the circumstances warrant that action.

Opinion No. 7212

March 19, 2008

Honorable Wayne Kuipers
State Senator
The Capitol
Lansing, MI

You have asked several related questions concerning marriage licenses and social security numbers. You first ask whether a county clerk may issue a marriage license if an applicant for the license fails to provide a social security number on his or her marriage application.

Michigan's Marriage License Act (Act), 1887 PA 128, MCL 551.101 et seq, requires "all parties intending to be married to obtain a marriage license from the county clerk of the county in which either the man or the woman resides." MCL 551.101. Section 2(1) of the Act mandates that the "party applying for a license to marry shall make and file the application in the form of an affidavit with the county clerk as the basis for issuing the license." MCL 551.102(1). This section also requires the State Registrar1 to prepare and furnish to each county clerk blank application forms, specifically including spaces for the provision of each applicant's social security number:

The state registrar shall furnish to each county clerk of this state blank application forms of an affidavit containing the requisite allegations, under the laws of this state, of the competency of the parties to unite in the bonds of matrimony, and as required to comply with federal law, containing a space requiring each applicant's social security number. A party applying for a license to marry shall make and file the application in the form of an affidavit with the county clerk as a basis for issuing the license. [MCL 551.102(1); emphasis added.]

The Act also provides that a social security number is not required of a person who demonstrates "he or she is exempt under law from obtaining a social security number or to an applicant who for religious convictions is exempt under law from disclosure of his or her social security number." MCL 551.102(3). But your question does not involve the application of these statutory exemptions.2 Your question asks me to address the circumstance where a person has no social security number and is not claiming an "exempt[ion] under law."

The requirement that applicants for a marriage license provide their social security numbers was added to the Act by 1998 PA 333 to comply with federal law, specifically 42 USC 666(a)(13)(A).3 This law governs the process by which grants are made to participating states for the Child Support Enforcement Program. Enacting section 2 of 1998 PA 333 directed the State to seek relief from the requirement to collect social security numbers and, if successful, to refrain from enforcing the requirement at both the state and local level:

The family independence agency [the predecessor agency to the Department of Human Services] shall request from the federal government an exemption from the provisions regarding the recording of social security numbers added by this 1998 amendatory act, which are intended to be used for the collection of child support, as required by federal law in order for this state to receive certain federal funds. Upon the granting of the exemption, those provisions referred to by this enacting section shall not be utilized or enforced by the state or a local governmental entity.

By using this language, the Legislature left no doubt about its intent to limit Michigan's obligation to comply with the social security number requirement of 42 USC 666(a)(13) to the extent required by federal law.

The State sought relief from the collection requirement, but the request was denied by the United States Department of Health and Human Services. On appeal to federal district court, that denial was upheld. See Michigan Dep't of State v United States, 166 F Supp 2d 1228 (WD Mich, 2001).

Because the Michigan Legislature added the social security number requirement to "comply with federal law," any guidance issued by the federal government with respect to this requirement is instructive. The U.S. Department of Health and Human Services, Office of Child Support Enforcement, issued interpretive guidance to State IV-D Directors and Regional Program Managers (who administer child support enforcement plans under Title IV-D of the Social Security Act) in Policy Interpretation Question PIQ-99-05, dated July 14, 1999, which warrants quoting at length:

It has come to our attention that there is some confusion regarding the issue of inclusion of social security numbers on license applications and other documents.

Section 466(a)(13) of the Social Security Act (Act) requires States to implement procedures requiring that the social security number(s) of any applicant for a professional, driver's, occupational, recreational or marriage license be recorded on the application. . . . Some States have asked how this requirement applies to those applicants or individuals that do not have social security numbers.

We interpret the statutory language in section 466(a)(13) of the Act to require that States have procedures which require an individual to furnish any social security number that he or she may have. Section 466(a)(13) of the Act does not require that an individual have a social security number as a condition of receiving a license, etc. We would advise States to require persons who wish to apply for a license who do not have social security numbers to submit a sworn affidavit, under penalty of perjury, along with their application stating that they do not have a social security number. . . .

This is consistent with the position we took in PIQ-97-04 regarding the requirement for inclusion of social security numbers on voluntary paternity acknowledgement affidavits. . . . [Emphasis added.]

Under this federal guidance, governmental agencies are advised to require a person wishing to apply for a marriage license who does not have a social security number to submit an affidavit, under penalty of perjury, that the person does not have a social security number. In Michigan, the application for a marriage license under MCL 551.102(1) is itself "in the form of an affidavit," and it is titled "Affidavit for License to Marry."4

The Social Security Administration adopted the same approach as the U.S. Department of Health and Human Services when it revised its rules regarding the assignment of social security numbers for nonwork purposes in 2003:

[W]e believe that while section 466(a)(13) of the Social Security Act, 42 U.S.C. 666(a)(13) concerning the recording of SSNs on driver's licenses and other documents, does require that States have procedures which require recording an individual's SSN that he or she may have, this section of the Act does not require that an individual be issued an SSN if the person is not otherwise eligible for one as a condition of receiving a license. This interpretation of 42 U.S.C. 666(a)(13) is also held by the Department of Health and Human Services, Office of Child Support Enforcement (OCSE), which enforces this statutory provision. See the memorandum from the Commissioner of OCSE, dated July 14, 1999 [PIQ-99-05, supra]. [68 Federal Register 55304; emphasis added.]

Based on the above guidance, federal law does not require the collection of a social security number from a person who has never been issued one in order for the State to comply with 42 USC 666(a)(13)(A).

It is my opinion, therefore, in answer to your first question, that, under section 2(1) of the Marriage License Act, MCL 551.102(1), a county clerk may issue a marriage license to an applicant who fails to provide his or her social security number on the application if the person has never been issued a social security number and so states on the affidavit for license to marry or in a separate sworn statement made a part of the application.

You next ask whether a county clerk is obligated to investigate the underlying reason why an applicant for a marriage license does not report a social security number on the application and, if so, whether the county clerk is required to report those findings.

A county clerk is an elected official who has only those powers and duties as are conferred by law. Const 1963, art 7, 4. Lapeer County Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003). See also Sittler v Michigan College of Mining & Technology Bd of Control, 333 Mich 681, 687; 53 NW2d 681 (1952).

The duties and functions of a county clerk concerning the issuance of marriage licenses as delineated in the Act were considered in OAG, 1977-1978, No 5409, p 730 (December 18, 1978).5 That opinion addressed the question whether a county clerk was afforded the discretion to examine marriage licenses and certificates of marriage submitted to the clerk's office for recording in order to determine whether the applicants had complied with all the requirements of the Act. OAG No 5409 concluded that "the [A]ct provides county clerks with practically no discretion to look behind the representations made on the sworn application unless it appears that the parties are not legally entitled to be married." OAG No 5409 at 731, citing Sabbe v Wayne County, 322 Mich 501; 33 NW2d 921 (1948); Toms v Judge of Recorder's Court of Detroit, 237 Mich 413; 212 NW 69 (1927); and Wilson v Circuit Judge of Genessee County, 87 Mich 493; 49 NW 869 (1891). The opinion went on to explain that the Act did allow a county clerk to look behind a sworn affidavit to corroborate the ages of applicants for a marriage license and to refuse to issue a license where the clerk has personal knowledge that the parties are not legally entitled to be married.

However, the Act does not authorize a county clerk to investigate reasons for not providing social security numbers. A county clerk's duties under the Marriage License Act are ministerial and are limited to those expressly conferred by law. Nothing may be read into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). A review of the Act discloses the county clerk's duty to collect a social security number. The clerk also has a clear duty to protect the confidentiality of social security numbers placed on marriage license applications. Indeed, the unlawful disclosure of a person's social security number could subject the clerk to civil and criminal penalties. MCL 445.86. But nothing in the plain language of the Act gives a county clerk any discretionary authority to investigate why an applicant does not have a social security number.

It is my opinion, therefore, in answer to your second question, that, where the applicant for a marriage license does not provide a social security number on the application for the license, the county clerk is not authorized to investigate the underlying reason why the applicant has failed to provide a social security number. However, the Act does not prohibit a county clerk from forwarding significant information to the appropriate authorities where, in the opinion of the clerk, the circumstances warrant that action.

MIKE COX
Attorney General

1 The State Registrar is appointed by the Director of the Michigan Department of Community Health and is the head of that department's Division for Vital Records and Health Statistics. The State Registrar is the officer charged with the duty of administering and controlling the only system of vital statistics for this State. MCL 333.2813(2)(a).

2 While our research has discovered a number of prohibitions rendering a person ineligible to obtain a social security number or exempting a person from participating in the social security insurance program, extensive research of federal and state law has disclosed no current "exempt[ions] under law" from obtaining or disclosing a social security number.

3 Section 466(a)(13)(A) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub L No 104-193 317, 110 Stat 2105 (1996) (codified as amended at 42 USC 666(a)(13)(A)), states in relevant part:

(a) Types of procedures required

In order to satisfy section 654(20)(A) [42 USC 654(20)(A)], each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part [the Child Support Enforcement Act, 42 USC 651 et seq.]:

* * *

(13) Recording of social security numbers in certain family matters

Procedures requiring that the social security number of

(A) any applicant for a professional license, driver's license, occupational license, recreational license, or marriage license be recorded on the application. [42 USC 666(a)(13)(A); emphasis added.]


4 See MCL 551.108, which states: "Any person applying for a marriage license who shall swear to a false statement therein, shall be guilty of perjury, and shall be prosecuted therefor under the general laws of the state."

5 The only change to the relevant statute that was enacted after OAG No 5409 issued was the addition of the provision requiring marriage license applicants to provide their social security numbers.