Fowler et al v. Johnson

Filing 29

OPINION and ORDER Denying Defendant's Emergency 25 Motion for Stay Pending Appeal. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ADRIAN FOWLER and
KITIA HARRIS, on behalf of themselves
and others similarly situated,
Plaintiffs,

Civil Case No. 17-11441
Honorable Linda V. Parker

v.
RUTH JOHNSON, in her official
capacity as Secretary of State of the
Michigan Department of State,
Defendant.
___________________________________/
OPINION AND ORDER DENYING DEFENDANT’S EMERGENCY
MOTION FOR STAY PENDING APPEAL
This is an action challenging Defendant’s practice, pursuant to Michigan
Compiled Laws § 257.321a, of suspending the driver’s licenses of individuals who
fail to pay court-ordered fines, costs, fees and assessments resulting from traffic
violations (“traffic debt”). On December 14, 2017, this Court entered an opinion
and order enjoining Defendant “from enforcing … § 257.321a to suspend the
driver’s licenses of people unable to pay their traffic debt.” (Op. & Order at 34,
ECF No. 21 at Pg ID 268.) Defendant filed an appeal of the Court’s decision and,
on December 19, 2017, moved for a stay of the injunction pending appeal. (ECF

No. 25.) Plaintiffs filed a response to Defendant’s motion on December 20, 2017.
(ECF No. 27.) Defendant filed a reply brief the same day. (ECF No. 28.)
The Federal Rules of Civil Procedure grant district courts the power to stay
an injunction pending appeal:
While an appeal is pending from an interlocutory order or
final judgment that grants, dissolves, or denies an
injunction, the court may suspend, modify, restore, or
grant an injunction on terms for bond or other terms that
secure the opposing party’s rights. …
Fed. R. Civ. P. 62(c). In deciding whether to issue a stay pursuant to Rule 62(c),
the court must consider the same factors analyzed when issuing injunctive relief:
“(1) the likelihood that the party seeking the stay will
prevail on the merits of the appeal; (2) the likelihood that
the moving party will be irreparably harmed absent a
stay; (3) the prospect that others will be harmed if the
court grants the stay; and (4) the public interest in
granting the stay.”
SEIU Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam) (quoting
Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153
(6th Cir. 1991)). “These factors are not prerequisites that must be met, but are
interrelated considerations that must be balanced together.” Id. The moving party
has the burden of demonstrating entitlement to a stay. Id. (citing Overstreet v.
Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002)).
With regard to the likelihood of reversal, Defendant argues that “the
preliminary injunction is procedurally improper.” (Def.’s Mot. at 4, ECF No. 25 at
2

Pg ID 278.) Defendant first argues that the Court failed to fulfill the requirements
of Federal Rule of Civil Procedure 65(d)(1). Specifically, Defendant claims the
injunction is ambiguous because it includes the following terms: “enforcing,” “to
suspend,” “people,” “unable to pay,” and “traffic debt.” (Def.’s Mot. at 607, ECF
No. 25 at Pg ID 280-81.) The terms are not ambiguous.
Rule 65(d)(1) provides:
Every order granting an injunction and every restraining
order must:
(A) state the reasons why [the injunction] issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to
the complaint or other document—the act or acts
restrained or required.
Fed. R. Civ. P. 65(d)(1). Nevertheless, “‘the rule does not require the impossible.
There is a limit to what words can convey.’” Windmill Corp. v. Kelly Foods Corp.,
Nos. 94-5874, 94-5890, 95-5137, 1996 WL 33251, at *6 (6th Cir. Jan. 26, 1996)
(unpublished) (quoting Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423,
1431 (7th Cir. 1985)). “Rule 65(d) does not require a torrent of words when more
words would not produce enlightenment about what is forbidden.’” Id. at *7
(quoting Scandia Down, 772 F.2d at 1432). Moreover, the words of the injunction
must be read in the context of the Court’s entire decision and, when that is done,
they are not ambiguous and the injunction satisfies Rule 65(d)(1)’s requirements.
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The Court sees no confusion as to what it was enjoining—that being,
Defendant’s suspension of Michigan driver’s licenses for failure to pay traffic
debt1 when the license holder is unable to pay that debt. The Court said nothing in
its decision about reinstating driver’s licenses previously revoked. In other words,
the Court’s December 14, 2017 decision does not require Defendant to restore
anyone’s license at this point. In fact, this was not relief sought by Plaintiffs in
their motion for preliminary injunction (unlike the plaintiffs in the Tennessee
license revocation case cited in the decision). See Robinson v. Purkey, No. 3:17cv-1263, 2017 WL 4418134 (M.D. Tenn. Oct. 5, 2017).
Defendant next argues that the Court’s injunction violates the security
requirement in Rule 65(c):
The court may issue a preliminary injunction or a
temporary restraining order only if the movant gives
security in an amount that the court considers proper to
pay the costs and damages sustained by any party found
to have been wrongfully enjoined or restrained.
Fed. R. Civ. 65(c). The Court did not address security in its decision; but,
Defendant never asked the Court to impose a bond in response to Plaintiffs’
preliminary injunction motion. Several courts have found no error in a district

1

As stated in the Court’s decision, it used the term “traffic debt” to refer to “courtordered fines, costs, fees and assessments resulting from traffic violations[.]” (See
Op. & Order at 1, ECF No. 21 at Pg ID 235.) Thus, the Court clearly was not
barring Defendant from enforcing Section 257.321a to suspend licenses for other
bases set forth in the statute.
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court’s failure to impose a bond where it never was requested. See, e.g., Conn.
Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 882-83 (9th Cir.
2003); Aoude v. Mobil Oil Corp., 862 F.2d 890, 895-96 (1st Cir. 1988); Clarkson
Co. v. Shaheen, 544 F.2d 624, 632 (2d Cir. 1976); Weaver v. Sch. Bd. of Leon
Cnty., No. 00-00091-cv-ws, 2006 WL 858510, at *2 n.3 (11th Cir. April 4, 2006)
(unpublished); see also Laster v. District of Columbia, 439 F. Supp. 2d 93, 99 n.7
(D.D.C. 2006) (declining to order the plaintiffs to post a bond in part because the
defendants never requested one); Scholle Corp. v. Rapak LLC, No. 13 c 397, 2014
WL 3687734, at *2 (N.D. Ill. July 24, 2014) (unpublished) (“[Defendant] is in no
position to complain about the opportunity to present its views on the bond amount
after this Court enjoined it when it failed to raise the issue on its own prior to the
entry of the preliminary injunction.”).
In any event, despite Rule 65(c)’s apparent mandatory language, “the rule in
our circuit has long been that the district court possesses discretion over whether to
require the posting of security.” Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d
1171, 1176 (6th Cir. 1995) (citing cases). Had the Court addressed security in its
decision, it would have held that no bond should be required. The Court reaches
this conclusion because Plaintiffs claim to be indigent and to have suffered injuries
because of their lack of financial resources. Further, the interests at stake are
substantial because the loss of a driver’s license, particularly in a state like
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Michigan lacking an efficient and extensive public transportation system, hinders a
person’s ability to travel and earn a living. To the extent the Court erred in not
making that determination in its preliminary injunction decision, see Roth v. Bank
of Commonwealth, 583 F.2d 527, 539 (6th Cir. 1978), it amends the decision to do
so now.
Defendant also contends that the preliminary injunction was issued in
violation of due process because the Court relied on evidence not presented by the
parties, but obtained from Michigan state court websites. However, the Court was
permitted to “judicially notice a fact that is not subject to reasonable dispute
because it … can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b)(2), and this
includes information posted on an official government website. Qiu Yun Chen v.
Holder, 715 F.3d 207, 212 (7th Cir. 2013) (“A document posted on a government
website is presumptively authentic if government sponsorship can be verified by
visiting the website itself.”); see also United States ex rel. Dingle v. BioPort Corp.,
270 F. Supp. 2d 968, 971-72 (2003) (citations omitted) (“Public records and
government documents are generally considered ‘not to be subject to reasonable
dispute.’ … This includes public records and government documents available
from reliable sources on the Internet.”); Lamay v. Balcarel, No. 2:13-CV-10482,
2013 WL 4053203, at *3 n. 5 (E.D. Mich. Aug.12, 2013) (unpublished) (“Public
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records and government documents, including those available from reliable
resources on the Internet, are subject to judicial notice”); Hames v. Sepanek, No.
0:13-111, 2013 WL 5235567, at *1 n. 1 (E.D. Ky. Sept.17, 2013) (unpublished)
(finding that “[r]ecords and information located on government websites are selfauthenticating under Fed. R. Evid. 902” and thus can be judicially noticed).
Defendant also believes, however, that her due process rights were violated
because the Court, when citing to this evidence, relied on a different basis to grant
injunctive relief than was argued by Plaintiffs and Defendant, therefore, did not
have the opportunity to address it before the Court’s ruling. (See Def.’s Mot. at 810, ECF No. 25 at Pg ID 282-84.) The Court does not believe that Defendant was
blindsided by this issue and not provided an opportunity to respond to it.
The crux of Plaintiffs’ case always has been that Michigan drivers lacking
the means to pay their traffic debt are denied their due process right to an abilityto-pay hearing before their licenses are suspended. (See, e.g., Compl. ¶¶ 11, 157,
159, ECF No. 1 at Pg ID 3, 25.) Defendant has argued in response that Plaintiffs
could have raised their indigency and sought an alternative to full payment of their
traffic debt by appearing in state court in response to their traffic citations.
Defense counsel reiterated this argument at oral argument in response to the
assertion by Plaintiff’s counsel that traffic citations inform drivers only that they
can contest liability at a hearing and, if they do not prevail, must then pay the full
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amount of their traffic debt. Plaintiffs referred to Ms. Fowler’s affidavit to support
this assertion.
The Court therefore spent significant time at oral argument seeking
information as to what ticketed motorists are told and when. The Court’s questions
should have made clear that it was concerned about if and how drivers were
informed that they could raise their indigency before their licenses were
suspended, as defense counsel asserted they could.2 Despite making this argument,
defense counsel conceded that he really was not aware if or how this opportunity
was conveyed to Michigan drivers as the traffic hearings are governed by local

2

As the Court’s December 14, 2017 decision hopefully made clear, the Court
believes that due process requires not only an opportunity to be heard but
knowledge of that opportunity. Therefore, even if the State Court Administrative
Office has created an administrative order establishing and requiring compliance
with collection programs and the State’s traffic courts offer alternatives to paying
traffic debt in full (see Def.’s Mot., Ex. 4, ECF No. 25-5), motorists’ due process
rights still may be violated if they are never informed that they can seek such relief
at a hearing. Plaintiffs established that motorists are informed only that they can
challenge their liability at the traffic court hearing and must pay their traffic debt in
full if they are liable. Defendant has not presented evidence to show otherwise. In
the affidavit Defendant offers from Linda Carroll, Court Administrator for the 43rd
District Court, Ms. Carroll states that payment extensions are given only to a
defendant “that ask[s]” and then the extension is only for two weeks. (Def.’s Mot.,
Ex. 3 ¶ 4, ECF No. 25-4 at Pg ID 307.) To receive a longer extension, defendants
usually must pay half of their debts. (Id.) According to Ms. Carroll, the court
informs individuals of their right to a hearing to raise their ability to pay only after
they fail to comply with a judgment. (Id. ¶ 8, Pg ID 308.) Ms. Carroll states that
the court sets a show cause hearing where the court will determine if a payment
plan, wage assignment or community service is appropriate; however, there is no
evidence that individuals are told beforehand that this will happen at the hearing.
(Id. ¶ 9, Pg ID 308.)
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state courts and not Defendant. Defense counsel could have requested the
opportunity to supplement the record at that time to show that motorists are
informed of the opportunity to raise their inability to pay and seek alternative
means of paying their traffic if they come to court in response to a traffic citation.
Nevertheless, counsel did not do so before the Court issued its preliminary
injunction decision.3
Defendant argues in her motion to stay that if she had known that the defects
in the court forms were the basis of any constitutional claim, she would have taken
the opportunity to explain that she is not responsible for crafting or issuing state
court notices to motorists. (Def.’s Mot. at 9, ECF No. 25 at Pg ID 283.) The
defects in the notices are not the basis of Plaintiffs’ constitutional claim, however.
Rather, the basis is the lack of an opportunity to be heard regarding inability to pay
before one’s license is suspended. The notices are relevant only with respect to
defense counsel’s assertion that Plaintiffs in fact were informed of and would have
been afforded that opportunity if they had appeared in state court.

3

Defendant attaches affidavits in support of her motion to stay to show that
indigency and alternatives to full payment are considered by the state traffic courts.
This evidence, however, was not part of the record when the Court decided to issue
the preliminary injunction and Defendant did not move for reconsideration based
on this new evidence before filing her appeal. Moreover, for the reasons stated in
the previous footnote, the evidence does not show that individuals are informed
that these matters will be considered.
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Notably, Defendant asserts on more than one occasion in her motion for a
stay that the operative state court notices are not within her control. Defense
counsel made the same point at oral argument. This may be true. Nevertheless,
Defendant has relied on these notices to argue that motorists are adequately
informed of the opportunity to have their indigency considered before their
licenses are revoked. If Defendant is delegating her constitutional obligation to
provide due process to Michigan motorists to the state courts, she bears the
responsibility for guaranteeing that the obligation is satisfied.4
Turning to the second and last factors the Court must consider in deciding
whether a stay is warranted, Defendant argues that she and third parties will suffer
irreparable harm absent a stay. Defendant first insists: “‘[A]ny time a State is
enjoined by a court from effectuating statutes enacted by representatives of its
people, it suffers a form of irreparable injury.”’ (Def.’s Mot. at 14, ECF No. 25 at
Pg ID 288, quoting Maryland v. King, 133 S. Ct. 1, 3 (2012) (additional quotation
marks and citation omitted).) Defendant’s counsel, the Michigan Department of
Attorney General, made the same argument in a previous case before this Court, to
which the Court responded:

4

Notably, in Section 257.321a, the Michigan legislature gave only Defendant the
power to suspend a motorist’s license for inter alia failure to “pay[] all fines, costs,
fees and assessments” related to a traffic violation. See Mich. Comp. Laws
§ 257.321a(2).
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Enjoining a State from enforcing its laws cannot always
amount to irreparable harm. If a statute is
unconstitutional, how is the State harmed by not being
able to enforce it? Joelner v. Vill. of Wash. Park, 378
F.3d 613, 620 (7th Cir. 2004) (“[T]here can be no
irreparable harm to a municipality when it is prevented
from enforcing an unconstitutional statute[.]”) (citing
Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th
Cir. 1998)).
Michigan State AFL-CIO v. Johnson, No. 16-11454, 2016 WL 6405831, at *2
(E.D. Mich. Oct. 31, 2016), aff’d in part and rev’d in part, 847 F.3d 800 (6th Cir.
2017). The same rationale undermines Defendant’s second argument that the
injunction intrudes into the State’s regulation of driver’s licenses and roadways, as
well as administration of its trial courts.
Defendant also argues that the State and its local units of government will
suffer irreparable harm by the loss of revenue because, without a defined standard
for “unable to pay,” “870,000 people that have not complied with a valid state
court order could now potentially argue they can avoid their ‘traffic debt.’” (Def.’s
Mot. at 14-15, ECF No. 25 at Pg ID 288-29.) Defendant contends that local court
resources also will be taxed when those courts are inundated with drivers
“potentially seek[ing] a determination on whether they are ‘unable to pay’ their
traffic debt.” (Id. at 15, Pg ID 289.) Moreover, according to Defendant, the
Michigan courts will be required to expend significant resources reviewing drivers’
files to assess their ability to pay.
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As the Court’s preliminary injunction does not apply retroactively, there is
no need at this time for the state to review the files of drivers whose licenses
already have been suspended. With respect to the potential for lost revenue and a
flood of requests for inability-to-pay hearings, Defendant contends in her motion
(and attaches affidavits as proof) that the Michigan courts already have in place a
system for assessing motorists’ ability to pay and, when the court determines that
they cannot pay in full, for directing alternative means of payment (e.g. payment
plans or community service). Assuming, as Defendant urges, that motorists
already are informed of the opportunity to raise indigency before the State’s traffic
courts, the preliminary injunction should not cause a flood of requests for abilityto-pay hearings. Because, as Defendant maintains, the local courts already offer
alternatives to full payment for indigent offenders, they presumably already have
in place a defined standard for evaluating motorists’ ability to pay.
Defendant nevertheless maintains in her reply brief that “the system” is not
“set up in a manner that allows flipping a switch to stop ‘enforcing Michigan
Compiled Laws § 257.321a to suspend the driver’s licenses of people unable to
pay their traffic debt.’” (Def.’s Reply at 2, ECF No. 28 at Pg ID 406, quoting Op.
& Order at 34, ECF No. 21 at Pg ID 268.) According to Defendant, “[it] is a
months-long disruptive process implicating every trial court in the State[]” and
would require “herculean compliance efforts[.]” (Id.) As Defendant indicated in
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her initial motion, it is the State’s trial courts that process traffic violations and
send suspension notices.
Yet, as the Court indicated earlier, the legislature granted the power to
suspend licenses for failure to pay traffic debt only to Defendant. Defendant
therefore must guarantee that individuals receive the process they are due before
their licenses are revoked. If Defendant cannot make this happen promptly or
without “herculean … efforts”, she can simply stop suspending driver’s licenses
until a system is in place to adequately inform drivers of their opportunity for a
pre-revocation ability-to-pay hearing and to afford such a hearing.
Defendant additionally contends that drivers whose licenses have been
revoked may be irreparably harmed absent a stay because the injunction may cause
them to run out and purchase a vehicle and the required insurance believing they
can now drive legally. (Def.’s Mot. at 15, ECF No. 25 at Pg ID 289.) Defendant
adds that if the preliminary injunction is modified or set aside, “those drivers will
have invested significant resources into a diminishing asset that they cannot use.”
(Id.) Again, the Court’s injunction does not require Defendant to reinstate driver’s
licenses previously suspended at this time. In any event, the scenario Defendant
envisions seems implausible as the same motorists lack the finances to pay their
traffic debts.

13

Finally, Defendant argues that Plaintiffs have not suffered irreparable injury
because they both lack standing and, in any event, have adequate post-deprivation
remedies. This Court already has questioned Ms. Fowler’s standing. (Op. and
Order at 14, ECF No. 21 at Pg ID 248.) But the Court found that Ms. Harris
“appears to be a proper plaintiff [with standing] to present the question of whether
it is constitutional for Michigan to suspend a driver’s license for failure to pay
court debts the licensee cannot afford.” (Id.) Defendant now claims in her motion
to stay that Ms. Harris has committed additional infractions during the pendency of
this lawsuit that operate to deprive her of Article III standing. Defendant also
maintains that records from the district court in Ferndale indicate that “[Ms.] Harris
in fact received the process that was due before her license was suspended.” (Id. at
17, Pg ID 291.)
Defendant did not raise these arguments or present this evidence before the
Court issued its preliminary injunction decision, however. In any event, Defendant
presents insufficient information for the Court to conclude at this juncture that Ms.
Harris lacks standing or that she was informed of the opportunity to raise her
indigency and seek an alternative to full payment of her traffic debt in the Ferndale
court. See supra at n. 2.

14

For the above reasons, the Court concludes that Defendant does not
demonstrate her entitlement to a stay of the preliminary injunction order pending
appeal.
Accordingly,
IT IS ORDERED that Defendant’s motion for stay pending appeal (ECF
No. 25) is DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 21, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, December 21, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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