JOHNSON, et al v. JESSUP
Filing
65
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 3/31/2019. IT IS ORDERED that the Commissioner's motion for judgment on the pleadings (Doc. 46 ) is GRANTED IN PART and DENIED IN PART, Plaintiffs' second motion for class certification (Doc. 36 ) is GRANTED IN PART and Plaintiffs' second motion for preliminary injunction (Doc. 38 ) is DENIED.(Engle, Anita)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SETI JOHNSON and MARIE
BONHOMME-DICKS, on behalf of
themselves and those similarly
situated, and SHAREE SMOOT and
NICHELLE YARBOROUGH, on behalf
of themselves and those
similarly situated,
Plaintiffs,
v.
TORRE JESSUP, in his official
capacity as Commissioner of
the North Carolina Division of
Motor Vehicles,
Defendant.
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1:18-cv-467
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This civil action arises out of the revocation of Plaintiffs’
North Carolina driver’s licenses, pursuant to N.C. Gen. Stat. § 2024.1(a)(2), because of Plaintiffs’ failure to pay court fines and
costs for motor vehicle violations.
Plaintiffs seek declaratory
and injunctive relief against Defendant Torre Jessup, in his
official capacity as Commissioner of the North Carolina Division
of Motor Vehicles (“DMV”), for enforcing section 20-24.1(a)(2)
against them in alleged violation of their equal protection and
due process rights under the Fourteenth Amendment to the United
States Constitution.
Specifically, Plaintiffs — who have limited
financial means — claim that it is unconstitutional for the DMV to
revoke their driver’s licenses for failure to pay fines and costs
without first affirmatively determining that they have the ability
to pay.
Before the court are the Commissioner’s motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c)
(Doc. 46) and Plaintiffs’ motions for class certification pursuant
to Rule 23(b)(2) (Doc. 36) and preliminary injunction pursuant to
Rule
65
(Doc.
38).
For
the
reasons
set
forth
below,
the
Commissioner’s motion for judgment on the pleadings will be granted
in
part
and
denied
certification
will
in
be
part,
Plaintiffs’
granted,
and
motion
Plaintiffs’
for
motion
class
for
preliminary injunction will be denied.
I.
BACKGROUND
Like
many
states,
North
Carolina
has
enacted
statutes
directing the revocation of driver’s licenses for failure to pay
fines and costs imposed for traffic violations.
The statutory
scheme works as follows: North Carolina courts “must report” to
the DMV the name of a traffic defendant who “fail[s] to pay a fine,
penalty, or costs within 40 days of the date specified in the
court’s judgment.”
N.C. Gen. Stat. § 20-24.2(a)(2).
Upon receipt
of this notice, the DMV “must revoke” the traffic defendant’s
driver’s license indefinitely.
accomplished
through
the
Id. § 20-24.1(a).
DMV’s
2
issuance
of
a
Revocation is
“[r]evocation
order[]” to the traffic defendant that becomes “effective on the
sixtieth day after the order is mailed or personally delivered to
the person.”
Id.
Unlike some states, North Carolina provides a procedure by
which traffic defendants can avoid or undo license revocation by
showing that their failure to pay is no fault of their own.1
Section
20-24.1(b)(4)
states
that
a
traffic
defendant
may
“demonstrate[] to the court that his failure to pay the penalty,
fine, or costs was not willful and that he is making a good faith
effort to pay or that the penalty, fine, or costs should be
remitted.”
If the court determines that the traffic defendant has
made a sufficient showing, the court notifies the DMV; upon receipt
of this notice, the DMV is required to rescind any revocation order
(if the order is pending but not yet in effect) or restore the
traffic defendant’s license (if the revocation order has already
gone into effect).
Id. § 20-24.1(b), (c).
Moreover, section 20-
24.1(b1) expressly provides an opportunity for traffic defendants
to address their ability to pay: “A defendant must be afforded an
opportunity for a trial or a hearing within a reasonable time of
the defendant’s appearance . . . [u]pon motion of [the] defendant.”
The revocation orders the DMV issues to traffic defendants cite to
1
For discussion of other state statutory schemes, see, e.g., Mendoza v.
Garrett, No. 3:18-cv-01634-HZ, 2018 WL 6528011, at *1–4 (D. Or. Dec. 12,
2018); Robinson v. Purkey, 326 F.R.D. 105, 115–23 (M.D. Tenn. 2018);
Fowler v. Johnson, No. 17-11441, 2017 WL 6379676, at *1–2 (E.D. Mich.
Dec. 14, 2017), appeal filed, No. 17-2504 (6th Cir. Dec. 19, 2017).
3
section 20-24.1 but do not mention any of its provisions or
otherwise refer to the ability-to-pay exception.
(Doc. 35 ¶ 32.)
Named Plaintiffs Nichelle Yarborough and Sharee Smoot are
low-income North Carolinians whose licenses have been suspended by
the DMV for failure to pay fines and costs.
(Docs. 5, 41.)
Named
Plaintiffs Seti Johnson and Marie Bonhomme-Dicks are low-income
North Carolinians who currently owe fines and costs for traffic
violations, and who are in imminent danger of license revocation.2
(Docs. 4, 40, 63.)
The named Plaintiffs claim that they are unable
to pay the fines and costs imposed on them and that neither the
state court nor the DMV has inquired into their ability to pay.3
(Doc. 35 at 1–6.)
The named Plaintiffs are not alone.
In the three-year period
prior to the initiation of this lawsuit, about 55,000 traffic
defendants received a revocation order but made their payments
prior to the revocation date.
(Doc. 62.)
About 68,000 traffic
defendants failed to make their payments by the revocation date,
2
The DMV has agreed to stay revocation of Johnson’s license pending
resolution of Plaintiffs’ motion for preliminary injunction. (Doc. 55
¶ 17.)
3
The exception to the former is Smoot, who apparently became able to
pay her fines and costs at some point after this lawsuit was filed.
Plaintiffs recognized at the hearing on the present motions that her
individual claims have become moot.
As to the latter, Plaintiffs’
counsel explained at the hearing that the state court waived BonhommeDicks’ fine for inability to pay at her initial appearance. However,
according to Bonhomme-Dicks, the judge told her that “the legislature
. . . prevented him from” waiving costs and proceeded to impose costs
in the amount of $388. (Doc. 40 ¶ 8.)
4
had their licenses revoked, but eventually made the payments
sometime thereafter.
(Id.)
About 63,000 traffic defendants never
made their payments, and their licenses remain revoked.
(Id.)
On May 30, 2018, Johnson and Smoot initiated this lawsuit.
(Doc. 1.)
Plaintiffs claim that the DMV’s enforcement of section
20-24.1 violates the Fourteenth Amendment in three ways: (1) by
violating their equal protection and substantive due process right
not to be penalized for non-payment without the
State first
determining that they were able to pay and willfully refused; (2)
by violating their procedural due process right to a hearing on
ability to pay prior to revocation; and (3) by violating their
procedural due process right to adequate notice.
(Doc. 35 at 32–
38.)
Plaintiffs contemporaneously moved for class certification
(Doc. 3) and for
preliminary injunction (Doc. 2), but later
withdrew them in order to file an amended complaint (Doc. 35) on
August
7,
2018,
Plaintiffs.
adding
Plaintiffs
Yarborough
then
filed
and
second
Bonhomme-Dicks
motions
for
as
class
certification (Doc. 36) and for preliminary injunction (Doc. 38).
The Commissioner answered the amended complaint (Doc. 43) and moved
for judgment on the pleadings (Doc. 46).
On March 13, 2019, the
court held a hearing on all outstanding motions, which are ready
for decision.
5
II.
ANALYSIS
A.
The Commissioner’s Motion for Judgment on the Pleadings
The legal standard governing motions for judgment on the
pleadings is the same as that employed on motions to dismiss for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
2014).
Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir.
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is
facially plausible when the plaintiff “pleads factual content that
allows
the
court
to
draw
the
reasonable
inference
that
the
defendant is liable,” demonstrating “more than a sheer possibility
that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556-57).
1.
Subject Matter Jurisdiction
The Commissioner first argues that the court lacks subject
matter jurisdiction over Plaintiffs’ claims under the RookerFeldman doctrine.4
Plaintiffs contend that the Commissioner reads
4
Defendants normally raise subject matter jurisdiction on a Rule
12(b)(1) motion to dismiss. However, “[o]bjections to subject-matter
jurisdiction . . . may be raised at any time.”
Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011); see also Fed. R. Civ.
P. 12(h)(3) (“If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”). “[I]f a party
raises an issue of subject matter jurisdiction on his motion for judgment
on the pleadings, the court will treat the motion as if it had been
brought under Rule 12(b)(1).” Kelly v. United States, No. 7:10-CV-172-
6
the doctrine too broadly and that it does not apply in this
instance.
The Rooker-Feldman doctrine — so named because of the Supreme
Court’s foundational decisions in Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983) — states that federal district courts
may not sit in review of state court decisions.
doctrine
Rooker,
was
the
construed
Supreme
expansively
Court
has
in
since
the
Although the
decades
clarified
the
following
“narrow”
circumstances in which it is applicable: “cases brought by statecourt
losers
complaining
of
injuries
caused
by
state-court
{ "pageset": "S93
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those
judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005).
Where a plaintiff “is not challenging the
state-court decision, the Rooker-Feldman doctrine does not apply.”
Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718 (4th Cir. 2006).
In the instant case, Plaintiffs do not challenge any judgment
of a North Carolina court.
The Commissioner’s argument to the
contrary is based on a misunderstanding of the statutory scheme at
issue, as evidenced by his repeated assertion that Plaintiffs are
FL, 2013 WL 5348455, at *3 (E.D.N.C. Sept. 23, 2013) (alteration in
original) (quoting Newbrough v. Piedmont Reg’l Jail Auth., No. 3:10CV867HEH, 2012 WL 169988, at *2 (E.D. Va. Jan. 19, 2012)).
7
“asking this Court to prohibit DMV from complying with license
revocation orders issued by North Carolina courts.”
(Doc. 47 at
11.) It is simply untrue that North Carolina courts issue “license
revocation orders” under the statutory scheme at issue here.
Instead, state courts “report to the [DMV] the name of any person
charged with a motor vehicle offense” who fails to pay a traffic
violation fine or cost.
added).
N.C. Gen. Stat. § 20-24.2(a) (emphasis
Upon receiving that “notice from [the] court,” it is the
DMV that issues a “[r]evocation order[],” which it then “mail[s]
or
personally
deliver[s]
to
the
person.”
Id.
§
20-24.1(a)
(emphasis added).
The only state court judgment relevant to this process is the
underlying imposition of a traffic violation fine or cost, and
Plaintiffs expressly do not challenge that judgment.
12.)
(Doc. 51 at
Plaintiffs’ claims do not in any way implicate the soundness
of the underlying traffic conviction and pecuniary imposition.
A
finding by this court that the DMV cannot constitutionally revoke
Plaintiffs’ driver’s licenses for failure to pay a court-ordered
fine or cost without first determining their ability to pay would
not imply that the state court should not have imposed the fine or
cost in the first place.
514,
524
(W.D.
Va.
See Stinnie v. Holcomb, 355 F. Supp. 3d
2018)
(“Plaintiffs
do
not
contest
their
convictions or the fines and costs assessed by the state court.
Therefore,
the
outcome
of
this
8
case
will
not
affect
those
judgments.” (citation omitted)).5
Because a ruling for Plaintiffs
would not involve this court’s “review and rejection” of any state
court judgment, Exxon, 544 U.S. at 284, the Rooker-Feldman doctrine
does not bar Plaintiffs’ claims.
See Stinnie, 355 F. Supp. 3d at
523–24; Fowler v. Johnson, No. 17-11441, 2017 WL 6379676, at *3
(E.D. Mich. Dec. 14, 2017) (“Plaintiffs are not . . . challenging
the imposition of any fines, costs, or assessments . . . . Instead,
Plaintiffs
are
challenging
Defendant’s
revocation
of
their
driver’s licenses for failing to pay their traffic debt without
consideration of their willfulness or ability to pay.
The
Rooker-Feldman
doctrine
does
not
extend
to
Plaintiffs’
claims.”), appeal filed, No. 17-2504 (6th Cir. Dec. 19, 2017).
5
The Stinnie court had previously dismissed the plaintiffs’ original
complaint under the Rooker-Feldman doctrine after finding that the
Virginia statute at issue directed “license suspension orders [to be]
issued by the state court.” Stinnie v. Holcomb, No. 3:16-cv-00044, 2017
WL 963234, at *12 (W.D. Va. Mar. 13, 2017); see Stinnie v. Holcomb, 734
F. App’x 858, 861 n.* (4th Cir. 2018). Even if the Stinnie court had
not found Rooker-Feldman inapplicable in its later ruling on an amended
complaint, see 355 F. Supp. 3d at 523–24, its former reasoning would be
inapposite to the North Carolina statute at issue here, under which state
courts do not issue revocation orders. See N.C. Gen. Stat. §§ 20-24.1,
20-24.2. Furthermore, the Commissioner’s representation that the Fourth
Circuit “affirm[ed] dismissal of [the Stinnie] Complaint on the grounds
that Plaintiffs’ claims were barred by the Rooker-Feldman doctrine” (Doc.
47 at 9) evinces a fundamental misunderstanding of the Fourth Circuit’s
ruling. The Fourth Circuit dismissed the appeal for lack of a “final,
appealable order,” expressly cautioning that its “discussion should not
be read to indicate that [it] would hold that the district court’s
analysis was free from error were [it] to consider the appeal on the
merits.” 734 F. App’x at 862–63 (internal quotation marks and brackets
omitted). Only Chief Judge Gregory reached the Rooker-Feldman issue,
noting in dissent that Rooker-Feldman “is an exceedingly narrow doctrine
that has no relevance to the facts of this case.” Id. at 868 (Gregory,
J., dissenting).
9
Consequently, the Commissioner’s reliance on Rooker-Feldman
to avoid this litigation is misplaced.
2.
The
Sovereign Immunity
Commissioner
next
makes
perfunctory
arguments
that
Plaintiffs’ claims are barred by the Eleventh Amendment: first,
that Plaintiffs’ claims impermissibly require the court to review
past state acts that do not amount to ongoing constitutional
violations,
and
second
that
the
Commissioner
himself
is
not
sufficiently connected with the allegedly unconstitutional acts to
be a proper defendant under Ex Parte Young, 209 U.S. 123 (1908).
Both contentions are unpersuasive.
The Eleventh Amendment
generally
“confirms the sovereign
status of the States by shielding them from suits by individuals
absent their consent.”
Frew ex rel. Frew v. Hawkins, 540 U.S.
431, 437 (2004).
However, the Eleventh Amendment excepts from its
bar
prospective
“suits
for
injunctive
relief
officials acting in violation of a federal law.”
Parte Young, 209 U.S. 123).
against
state
Id. (citing Ex
This exception has two components:
whether “(1) the violation for which relief is sought is an ongoing
one, and (2) the relief sought is only prospective.”
Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998).
first,
a
plaintiff
must
merely
show
that
he
is
Republic of
As to the
“presently
experienc[ing the] harmful consequences of [the State’s] past
conduct” in order to properly claim an “ongoing violation[] of
10
federally protected constitutional rights” sufficient to satisfy
Ex Parte Young.
Id. at 628; see also Coakley v. Welch, 877 F.2d
304, 306–07 & n.2 (4th Cir. 1989) (finding that a plaintiff’s claim
that he had been unconstitutionally fired alleged an “ongoing
violation” because his wrongful termination “continues to harm him
by
preventing
employment”).
him
from
obtaining
the
benefits
of
[state]
Furthermore, the answer to the second inquiry tends
to drive the answer to the first, as “the issue of whether a
violation is ‘ongoing’ [is] related to the issues of whether
prospective relief is appropriate, or whether the requested relief
would operate instead as an illegitimate award of retroactive
damages.” Coakley, 877 F.2d at 307 n.2.
Ex Parte Young separately
requires an officer to have “some connection with the enforcement
of the [allegedly unconstitutional] act,” 209 U.S. at 157, before
he may be sued; the officer must have some “proximity to and
responsibility for the challenged state action,” as opposed to
mere “general authority to enforce the laws of the state.”
S.C.
Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008)
(emphasis and brackets omitted) (quoting Waste Mgmt. Holdings,
Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001)).
Plaintiffs easily satisfy these requirements.
Although the
DMV’s revocation of some Plaintiffs’ driver’s licenses took place
in the past, those Plaintiffs continue to experience the harmful
consequences of that action so long as their licenses remain
11
revoked.
Thus, although the DMV is “no longer giving [those
Plaintiffs]
license
daily
revocations
“preventing
[them]
attention,”
its
“continue[]
from
to
obtaining
otherwise enjoy as license-holders.
allegedly
harm”
the
unconstitutional
those
Plaintiffs
benefits”
they
by
would
Coakley, 877 F.2d at 807 n.2;
see also id. (“Cases from other circuits, as well as [the Fourth
Circuit], suggest that few, if any, suits are barred for failure
to allege an ‘ongoing violation’ . . . .”).6 And the Commissioner’s
argument that he is not sufficiently connected to the enforcement
of section 20-24.1(a)(2) to be a proper defendant under Ex Parte
Young is based on the same mistaken argument addressed in the
court’s Rooker-Feldman analysis above: that “[t]he DMV simply
complies with revocation orders issued by state courts.”
at 13–14.)
(Doc. 47
As previously explained, North Carolina courts do not
issue driver’s license revocation orders for failure to pay traffic
6
In some senses, the ongoing violation inquiry is merely another way of
getting to the prospective relief inquiry. See Coakley, 877 F.2d at 307
n.2. Relief that is truly prospective does not compensate a plaintiff
for past harm — it only prevents further harm. Thus, a finding that a
plaintiff has requested truly prospective relief from state-caused harm
in the present carries with it the connotation that the violation alleged
must be “ongoing” in the sense relevant to Ex Parte Young. See Verizon
Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002) (finding that
a plaintiff’s “prayer for injunctive relief . . . clearly satisfies [the]
straightforward inquiry” of “whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as
prospective” (internal quotation marks and brackets omitted)). In the
instant case, there is no serious argument that Plaintiffs’ requested
relief is not prospective.
12
violation fines and costs;7 the DMV, which the Commissioner heads,
issues those revocation orders.
Torre
Jessup:
Transportation
DMV
See N.C. Gen. Stat. § 20-24.1(a);
Commissioner,
(Feb.
5,
North
2019),
Carolina
Department
of
https://www.ncdot.gov/about-
us/our-people/leadership/Pages/torre-jessup.aspx
(noting
that,
“[a]s commissioner, Torre Jessup oversees the daily operations of
the
N.C.
Division
licenses”).
of
Motor
Vehicles,
including
. . .
driver
As a result, the Eleventh Amendment presents no bar
to Plaintiffs’ claims.8
3.
Equal Protection and Substantive Due Process
Turning to the merits, the Commissioner moves for judgment on
the
pleadings
on
Plaintiffs’
claim
that
revocation
of
their
driver’s licenses for failure to pay fines and costs without first
affirmatively determining their ability to pay violates their
equal protection and substantive due process rights under the
“fundamental fairness” doctrine enunciated in cases like Bearden
v. Georgia, 461 U.S. 660 (1983).
The Commissioner argues that the
7
The Commissioner has not persuasively explained why he would not have
a sufficient connection to the enforcement of section 20-24.1(a)(2) even
if he was merely enforcing revocation orders entered by state courts.
However, the court need not consider that counterfactual scenario.
8
The Commissioner also argues that the complaint should be dismissed
because Plaintiffs’ requested relief would not redress their injury,
given the Commissioner’s alleged helplessness “to intervene” when “a
state court has entered a presumptively valid revocation order.” (Doc.
47 at 15.) As previously explained, the statutory scheme at issue in
this case directs the DMV, not state courts, to order license revocation.
See N.C. Gen. Stat. §§ 20-24.1, 20-24.2. The Commissioner’s argument
therefore fails.
13
fundamental fairness doctrine does not apply to the statutory
scheme at issue in this case, which should be upheld instead under
the default rational basis standard.
It has long been black-letter law that, absent the involvement
of
a
suspect
classification
or
fundamental
right,
statutes
challenged under the Fourteenth Amendment’s equal protection or
substantive due process guarantees are upheld so long as they have
a “rational basis.”
See U.S. v. Caroline Prods. Co., 304 U.S.
144, 152 & n.4 (1938); Colon Health Ctrs. Of Am., LLC v. Hazel,
733 F.3d 535, 547–48 (4th Cir. 2013).
The bar for surviving
rational basis scrutiny is modest; as long as there is “any
reasonably conceivable state of facts that could provide a rational
basis” for the enactment, the statute must be upheld.
F.C.C. v.
Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
Nevertheless, beginning with a plurality opinion in Griffin
v. Illinois, 351 U.S. 12 (1956) and running through (and beyond)
a more definitive treatment in Bearden, the Supreme Court has held
that “[d]ue process and equal protection principles converge” in
some contexts into a constitutional requirement of “fundamental
fairness” that calls for courts to make a more “careful inquiry
into
such
factors
as
the
nature
of
the
individual
interest
affected, the extent to which it is affected, the rationality of
the connection between legislative means and purpose, and the
existence of alternative means for effectuating the purpose.”
14
Bearden, 461 U.S. at 665–66, 673 (internal quotation marks and
brackets omitted).
In Bearden itself, the Court applied this
inquiry to the question of whether state courts could revoke
probation and incarcerate an individual for failing to pay a fine
or restitution when the individual made bona fide efforts to pay
but
could
not,
ultimately
holding
that
incarceration
is
“fundamentally unfair” in that context unless the state court
determines there are no “alternate measures of punishment other
than imprisonment . . . adequate to meet the State’s interests.”
Id. at 672.
The only contexts in which the Supreme Court has
applied this fundamental fairness doctrine are those in which a
state has deprived persons of fundamental rights because of their
indigency
denying
them
access to the courts when they cannot make a certain payment.
See,
e.g.,
—
specifically,
Griffin,
351
U.S.
incarcerating
12
(access
to
them
or
courts);
Williams
v.
Illinois, 399 U.S. 235 (1970) (incarceration); Tate v. Short, 401
U.S.
395
(1971)
(incarceration);
Bearden,
461
U.S.
660
(incarceration); M.L.B. v. S.L.J., 519 U.S. 102 (1996) (access to
courts); see also Tennessee v. Lane, 541 U.S. 509, 522–23 (2004)
(referring to “the right of access to the courts” as one of the
“basic
constitutional
guarantees,
infringements
of
which
are
subject to more searching judicial review”).9
9
To the extent the Court in some of these access-to-courts cases also
considered the nature of the plaintiffs’ underlying interest in the
15
Plaintiffs
claim
that
the
fundamental
fairness
doctrine
applies to the statutory scheme at issue in this case, despite the
fact that there is no fundamental right or interest at issue,10
because Bearden in fact stands for the general principle that the
Fourteenth
Amendment
“prohibit[s]
the
people simply because of their poverty.”
punishment
of
indigent
(Doc. 51 at 20.)
This
construal of Bearden comes perilously close to an argument that
courts must apply a higher standard of scrutiny to statutory
classifications based on indigency — a principle the Supreme Court
has “repeatedly” rejected in favor of rational basis analysis.
Harris v. McRae, 448 U.S. 297, 323–24 (1980).
More importantly,
Plaintiffs have not proffered a single case from the Supreme Court
or Fourth Circuit in the sixty-plus years since Griffin in which
the fundamental fairness doctrine was applied to an alleged harm
substantive issue the plaintiffs wished to address in the courts, those
interests were also “fundamental.” See, e.g., Boddie v. Connecticut,
401 U.S. 371, 383 (1971) (right of access to courts is precondition of
divorce, “the adjustment of a fundamental human relationship”); M.L.B.,
519 U.S. at 121 (right of access to courts is necessary to allow
participation in “parental status termination,” which “is irretrievably
destructive of the most fundamental family relationship” (internal
quotation marks and brackets omitted)). Where the underlying substantive
issue did not implicate a “fundamental” interest, the court eschewed a
more searching inquiry in favor of the rational basis analysis.
See
M.L.B., 519 U.S. at 114–15 (discussing United States v. Kras, 409 U.S.
434 (1973), and Ortwein v. Schwab, 410 U.S. 656 (1973)).
10
Although Plaintiffs stress that driver’s licenses are “crucial” or
even “essential,” they do not argue that there is a fundamental right
to a driver’s license. (Doc. 51 at 4, 22); see also (Doc. 35 ¶ 121
(“Plaintiffs have a substantial interest in their driver’s licenses.”)).
Courts in similar cases have treated and rejected such an argument. See
Mendoza, 2018 WL 6528011, at *20; Fowler, 2017 WL 6379676, at *7–8.
16
not involving fundamental rights or interests.11
See Mendoza v.
Garrett, No. 3:18-cv-01634-HZ, 2018 WL 6528011, at *19 (D. Or.
Dec. 12, 2018) (“What all of these cases teach is that the
‘fundamental
fairness’
principles
of
due
process
and
equal
protection originating in Griffin have been applied when either
incarceration or access to the courts, or both, is at stake.”);
Fowler, 2017 WL 6379676, at *6–7 (“None of these cases establish
. . . that it is fundamentally unfair in a constitutional sense
. . . for a state to deprive a person of a property interest —
such as a driver’s license — because of the person’s inability to
pay a fine associated with that interest.”).
itself
encouraged
courts
to
impose
Notably, Bearden
“alternate
measures
of
punishment other than imprisonment” that would “meet the State’s
interests” in ways that did not result in incarceration.
at 672.
461 U.S.
Driver’s license revocation is just such an “alternate
11
To the extent Plaintiffs may have suggested at the motions hearing
that Alexander v. Johnson, 742 F.2d 117 (4th Cir. 1984), is such a case,
on the idea that the Fourth Circuit applied Bearden to an “attorney fee
recoupment” statute, the court disagrees. The Alexander court did not
expressly rely on Bearden for anything other than its holding that “an
inmate violating any monetary requirement of his probation or restitution
regiment cannot be imprisoned if his non-compliance results from poverty
alone.” Alexander, 742 F.3d at 124; see also id. at 125–26. In their
briefing, Plaintiffs’ only citation for the proposition that the
fundamental fairness doctrine applies to any “imposition of adverse
consequences against indigent defendants solely because of their
financial circumstances” is to a “Statement of Interest” filed by the
United States in Stinnie. (Doc. 51 at 21.) However, that document does
not cite any case applying the fundamental fairness doctrine in any
context not involving incarceration or access to courts.
17
measure.”12
In sum, contrary to Plaintiffs’ contention, the fundamental
fairness doctrine does not apply to the indigency claim here, where
no fundamental right or interest is at stake.
This leaves the
court to apply rational basis analysis, and section 20-24.1 easily
evinces
the
required.
“constitutionally
minimal
level
of
rationality”
Van Der Linde Housing, Inc. v. Rivanna Solid Waste
Auth., 507 F.3d 290, 295 (4th Cir. 2007).
Revocation of driver’s
licenses for failure to pay traffic violation fines or costs
serves, in the Commissioner’s words, to “impos[e] a motivation to
accomplish what an individual might otherwise be disinclined to
do” — here, to pay the fines and costs properly imposed on traffic
defendants.13
(Doc.
47
at
20.)
collection
of
monetary
interest.
Instead, Plaintiffs argue that the DMV sweeps too
exactions
There
is
not
is
a
no
argument
legitimate
that
state
broadly: that revoking the licenses of all traffic defendants who
don’t pay their fines and costs irrationally results in the
revocation of the licenses of some who cannot pay, and to whom any
12
As discussed in more detail herein, North Carolina’s statutory scheme
also includes an express procedure by which traffic defendants can avoid
or undo license revocation for failure to pay a fine or cost if they
show that their failure to pay was not “willful” and that they are making
a “good faith effort to pay.” N.C. Gen. Stat. 20-24.1(b)(4), (b1).
13
To reiterate, Plaintiffs expressly do not argue that the fines and
costs were improperly imposed on them in the first place, only that the
DMV should not revoke their driver’s licenses for failure to pay those
fines and costs without first determining that they are able to pay.
18
additional incentive to pay is ineffective.14
But the rational
basis test does not require laws to be narrowly tailored to
accomplish the State’s ends.
See Van Der Linde, 507 F.3d at 295
(“The ‘rational’ aspect of rational basis review . . . is not an
invitation to scrutinize . . . the instrumental rationality of the
chosen means (i.e., whether the classification is the best one
suited to accomplish the desired result).”).
“Neither may a
policy’s
of
rationality
be
judged
on
fairness, or logic (or lack thereof).”
the
basis
its
Id. at 293–94.
wisdom,
Since there
is a “reasonably conceivable state of facts,” Beach, 508 U.S. at
313,
under
which
section
20-24.1(a)(2)
provides
some
traffic
defendants with an efficacious incentive to pay fines and costs,
the law survives rational basis review.
Because the fundamental fairness doctrine does not apply and
section 20-24.1 has a rational basis, Plaintiffs have not plausibly
alleged an equal protection and substantive due process claim.
Accordingly, the court will grant the Commissioner judgment on the
pleadings as to that claim.
The Commissioner presented no merits
argument for judgment on the pleadings as to Plaintiffs’ procedural
due process claims, however, and for that reason those claims
14
Indeed, as Plaintiffs point out, revocation of a person’s driver’s
license may in some cases do more harm than good to the State’s cause,
given that losing the ability to drive can negatively impact a person’s
ability to earn money with which to pay their fines and costs.
19
survive at this time.15
B.
Plaintiffs’ Motion for Class Certification and
Appointment of Class Counsel
Plaintiffs move to certify two classes under Federal Rule of
Civil Procedure 23(a) and (b)(2): the “Revoked Class,” composed of
everyone whose driver’s license has been revoked by the DMV for
failure to pay a traffic violation fine or cost, and the “Future
Revocation Class,” composed of everyone whose driver’s license
will be so revoked in the future.
Plaintiffs also move for
appointment of class counsel under Rule 23(g).
opposes
certification,
challenging
whether
The Commissioner
several
of
the
prerequisites to certification have been met.
To be certified, a putative class must first satisfy the four
15
At the motions hearing, the Commissioner initially represented that
he had moved for judgment on the pleadings on the merits as to Plaintiffs’
procedural due process claims. When pressed by the court to identify
where such an argument was made, counsel eventually admitted that the
Commissioner’s brief “do[es] not use the word procedural due process.”
While one sentence in the Commissioner’s “Statement of the Case” does
allege generally that section 20-24.1’s “procedural protections . . .
afford the Plaintiffs sufficient due process” (Doc. 47 at 3), this
solitary statement falls well short of the court’s requirement that
“[o]pening briefs filed with the Court shall contain . . . argument,
which shall refer to all statues, rules, and authorities relied upon.”
Local Rule 7.2(a). Plaintiffs’ responsive brief reflects a reasonable
understanding that such an argument was not made. (Doc. 51 at 20 n.4.)
Allowing the Commissioner to raise a merits argument for dismissal of
Plaintiffs’ procedural due process claims for the first time at the
motions hearing would have “undermine[d] the purpose of orderly briefing
and risk[ed] subjecting an opponent to an unfair disadvantage.” N.C.
Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 713 F. Supp.
2d 491, 510 (M.D.N.C. 2010); see Lucas v. Henrico Cty. Sch. Bd., 822 F.
Supp. 2d 589, 600 n.10 (E.D. Va. 2011) (declining to address a basis for
dismissal “because it first arose during oral argument, because [the
other party] has not had a full and fair opportunity to respond, and
because the Court lacks the benefit of full briefing on the subject”).
20
requirements set out in Rule 23(a): “(1) numerosity of parties;
(2) commonality of factual and legal issues; (3) typicality of
claims and defenses of class representatives; and (4) adequacy of
representation.”
Gunnells v. Healthplan Servs., Inc., 348 F.3d
417, 423 (4th Cir. 2003).
Next, the putative class must show that
it is one of the three types of classes described in Rule 23(b).
Here, Plaintiffs assert that “the party opposing the class has
acted or refused to act on grounds that apply generally to the
class,
so
that
final
injunctive
relief
or
corresponding
declaratory relief is appropriate respecting the class as a whole.”
Fed. R. Civ. P. 23(b)(2).
Nevertheless, district courts retain
“broad discretion” in deciding whether a class should be certified
and how that class should be defined.
F.2d
1343,
1348
(4th
Cir.
1976).
Roman v. ESB, Inc., 550
“Merits
questions
may
be
considered to the extent — but only to the extent — that they are
relevant to determining whether the Rule 23 prerequisites for class
certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans
&
Trust
Funds,
568
U.S.
455,
466
(2013).
Otherwise,
“[a]n
evaluation of the probable outcome on the merits is not properly
part of the certification decision.”
Id. (quoting 2003
Advisory Committee Note on Rule 23(c)(1)).
The
Commissioner
representation
or
categorization,
and
does
the
the
not
putative
court
contest
class’s
independently
21
the
adequacy
Rule
finds
of
23(b)(2)
that
these
requirements are met.
The named Plaintiffs do not appear to have
interests that conflict with those of the class and have each
explained their commitment to the litigation.
40, 41, 63).
See (Docs. 4, 5,
While Plaintiff Smoot appears to have paid her
traffic fines and costs, Plaintiff Yarborough has not and can
adequately represent the proposed Revoked Class.
Plaintiffs’
counsel are adequate under Rule 23(a)(4) for the same reasons they
satisfy the Rule 23(g) standard, as discussed below.
Finally,
Rule 23(b)(2) — which “was created to facilitate civil rights class
actions,” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311,
330 n.24 (4th Cir. 2006) — is satisfied because Plaintiffs seek
injunctive and declaratory relief and challenge the Commissioner’s
class-wide enforcement of section 20-24.1(a)(2).
The
Commissioner
typicality.
1.
contests
numerosity,
commonality,
and
Each will be addressed in turn.
Numerosity
“There is no mechanical test for determining whether” the
number of potential plaintiffs in a given action is sufficient to
meet
Rule
23(a)(1)’s
“impracticable.”
(4th
Cir.
1978)
requirement
that
joinder
would
be
Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35
(per
curiam).
Instead,
the
numerosity
determination “depends on the particular facts of each case.”
7A
Charles Alan Wright et al., Federal Practice and Procedure § 1762
(3d ed. 2018) (also noting that “no arbitrary rules regarding the
22
size of classes have been established by the courts”).
The Fourth
Circuit has previously certified classes of as few as eighteen
plaintiffs.
See Cypress v. Newport News Gen. & Nonsectarian Hosp.
Ass’n, 375 F.2d 648, 653 (4th Cir. 1967); see also Dameron v. Sinai
Hosp. of Baltimore, Inc., 595 F. Supp. 1404, 1408 (D. Md. 1984)
(“A class consisting of as few as 25 to 30 members raises the
presumption that joinder would be impractical.”).
In this case, the Commissioner’s argument is not so much that
any specific number advanced by Plaintiffs is insufficient, but
that Plaintiffs’ numerosity evidence is too speculative.
This
argument attacks Plaintiffs’ reliance in their opening brief on a
September 26, 2017 email from a DMV employee stating that “[t]he
total number of Failure to Pay is 436,050” (Doc. 6-9), on the basis
that
the
email
“does
not
explain
the
time
frame
of
these
suspensions, or even if the [number] is referring to individuals”
(Doc. 48 at 7).
The Commissioner goes on to criticize Plaintiffs
for omitting any evidence concerning how many of these failureto-pay license revocations involve traffic defendants who “are low
income individuals.”
(Id.)
The Commissioner’s concerns, however, are allayed by his own
evidence.
On March 13, 2019, the Commissioner filed the affidavit
of a North Carolina Department of Transportation employee stating
that in the three years prior to the lawsuit’s initiation, 62,788
traffic defendants failed to pay their traffic violation fines and
23
costs and have therefore had their driver’s licenses revoked.16
(Doc. 62.)
clearly
This evidence is confined to a relevant timeframe and
refers
to
individual
traffic
defendants.
The
Commissioner’s protest that Plaintiffs have not supported their
“allegation that the proposed Revoked Class members are low income
individuals” (Doc. 48 at 7) is an attack on a straw man; Plaintiffs
have never made such an allegation.
Plaintiffs’ proposed classes
consist of “all individuals” whose driver’s licenses have been or
will be revoked under section 20-24.1(a)(2).
Even looking only to
the Commissioner’s evidence, then, Plaintiffs’ proposed Revoked
Class consists of at least 62,788 individuals.
As to the proposed
Future Revocation Class, the court may reasonably infer from the
size of the Revoked Class that it too is large.
See 1 William B.
Rubenstein, Newberg on Class Actions § 3:13 (5th ed. 2018) (courts
may
use
available
evidence
to
“make
commonsense
regarding the number of putative class members”).
assumptions
This evidence
is sufficient to show that Rule 23(a)(1)’s numerosity requirement
is met.
2.
Commonality
Rule 23(a)(2) “requires the plaintiff[s] to demonstrate that
the class members have suffered the same injury” in the sense that
16
Another 67,809 traffic defendants eventually paid their fines and
costs at some point after their license had already been revoked; 55,336
traffic defendants received a revocation order but paid their fines and
costs within the 60-day period before the revocation went into effect.
(Doc. 62.)
24
“[t]heir
claims
. . .
depend
upon
a
common
contention,”
the
determination of which “will resolve an issue that is central to
the validity of each one of the claims.”
Dukes, 564 U.S. 338, 350 (2011).
Wal-Mart Stores, Inc. v.
“[T]his provision does not
require that all the questions of law and fact raised by the
dispute be common,” just that any “dissimilarities between the
claims [do not] impede a common resolution.” Wright et al., supra,
§ 1763.
The Commissioner does not address the seven common questions
of law and fact listed in Plaintiffs’ opening brief;17 instead, he
argues that the proposed class members have not “suffered the same
injury” as Plaintiffs:
Plaintiffs’ [sic] complain that without a driver’s
license, they are forced to choose between going to work,
getting food for the family, attending medical
appointments, driving their kids to school, or driving
on
a
revoked
license.
While
the
Plaintiffs’
Declarations may provide evidence of their injuries,
they do not provide evidence that any number of other
people are facing the same injuries.
(Doc. 48 at 17–18 (citation and emphasis omitted).)
the Commissioner misunderstands Plaintiffs’ claims.
injury
Plaintiffs
assert
is
the
allegedly
Once again,
The core
unconstitutional
deprivation of their driver’s licenses under section 20-24.1, not
the practical effects of this revocation on their personal lives.
17
One or two of these questions are rendered irrelevant by the court’s
dismissal of Plaintiffs’ equal protection and substantive due process
claim. The rest remain relevant.
25
While Plaintiffs do provide a litany of additional allegations
regarding the personal hardships attendant to license revocation
in what may be an attempt to underscore the seriousness and
sympathetic nature of their claims, these additional allegations
are not the constitutional injury Plaintiffs assert.
In the
court’s view, the DMV’s enforcement of section 20-24.1 against the
named Plaintiffs and proposed class members provides sufficient
common
questions
of
fact
and
law
on
which
to
sustain
a
constitutional class action.
3.
Typicality
Rule 23(a)(3) requires that “the claims or defenses of the
representative parties are typical of the claims or defenses of
the class.” “The essence of the typicality requirement is captured
by the notion that ‘as goes the claim of the named plaintiff, so
go the claims of the class.’”
Deiter v. Microsoft Corp., 436 F.3d
461, 466 (4th Cir. 2006) (quoting Broussard v. Meineke Discount
Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)).
In order
to determine whether a named plaintiff’s “claims or defenses” are
typical of those of the proposed class, the court will frequently
have
to
undertake
some
investigation
plaintiff’s underlying claim.”
of
“the
merits
of
the
Dukes, 564 U.S. at 351.
The Commissioner offers four reasons that the court should
decline to find the named Plaintiffs’ claims typical of the
proposed classes.
26
First, as in the commonality context, the Commissioner argues
that Plaintiffs have not shown that the proposed class members are
similarly low-income.
(Doc. 48 at 11.)
As the court pointed out
in that context, the constitutional violations Plaintiffs assert
are not dependent on whether a given traffic defendant would be
able to successfully show inability to pay at an ability-to-pay
hearing.
It is the alleged lack of notice and a hearing prior to
revocation that forms the basis of Plaintiffs’ procedural due
process claims.
See Coe v. Armour Fertilizer Works, 237 U.S. 413,
424 (1915) (“To one who protests against the taking of his property
without due process of law, it is no answer to say that in his
particular case due process of law would have led to the same
result because he had no adequate defense upon the merits.”).
Second, the Commissioner argues that “the relief sought by
Plaintiffs would require an individualized inquiry into [each]
driver’s eligibility for reinstatement” (Doc. 48 at 12), the idea
being that the driver’s licenses of some class members may be
revoked
on
additional
bases.
Although
objections
about
the
contours of any potential relief are more relevant to the Rule
23(b)(2) analysis than to typicality, compare Fed. R. Civ. P.
23(b)(2) (parties must show that “final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole”) with Fed. R. Civ. P. 23(a)(3) (parties must
show that their “claims or defenses” are typical of the class),
27
the
Commissioner’s
concern
is
illusory
in
any
context.
As
Plaintiffs point out, if the court ultimately finds that the DMV’s
enforcement
of
section
unconstitutional,
the
20-24.1(a)(2)
court
can
order
is
the
and
DMV
to
has
been
annul
all
revocations within the class that were entered pursuant to that
provision.
It would remain for the DMV, not the court, to
investigate whether a given license should remain revoked on some
other basis or whether the license should be reinstated pending
provision of sufficient due process.
Third,
the
Commissioner
argues
that
some
proposed
class
members may have received the ability-to-pay hearing that the named
Plaintiffs did not.
(Doc. 48 at 13.)
Although this factual
distinction, if it exists, might have created problems for the
typicality of an as-applied challenge, Plaintiffs clarify that
they “bring a facial challenge to Sections 20-24.1 and 20-24.2.”
(Doc. 50 at 10.)
To the extent that the Commissioner may have
understood Plaintiffs’ procedural due process claims to be asapplied,
Plaintiffs’
clarification
assuages
his
typicality
concern.
Fourth, and finally, the Commissioner argues that the claims
of some proposed Revoked Class members will be subject to a statute
of limitations defense that the claims of the named Plaintiffs do
not typify.
Plaintiffs
(Doc. 48 at 11.)
do
not
contest
—
The Commissioner argues — and
that
28
the
relevant
statute
of
limitations is three years.
See N.C. Gen. Stat. § 1-52(5); Love
v. Alamance Cty. Bd. of Educ., 757 F.2d 1504, 1506 & n.2 (4th Cir.
1985) (three-year statute of limitations applicable to 42 U.S.C.
§ 1983 actions in North Carolina); Nat’l Advert. Co. v. City of
Raleigh, 947 F.2d 1158, 1162 (4th Cir. 1991).
Since Plaintiffs
claim that the Constitution requires pre-deprivation notice and an
ability-to-pay hearing before a driver’s license may be revoked
under section 20-24.1(a)(2), and since the DMV notifies traffic
defendants of the day that the revocation order will go into
effect, each Plaintiff’s claim accrued at least by the day that
the DMV’s revocation order became effective.
See Ocean Acres Ltd.
P’ship v. Dare Cty. Bd. of Health, 707 F.2d 103, 107 (4th Cir.
1983) (“[Plaintiff’s] due process claims accrued when plaintiff
knew of or had reason to know of the alleged injury which is the
basis of its action.”).
Thus, the Commissioner argues, proposed
Revoked Class members whose driver’s licenses were revoked more
than three years prior to the filing of this action will be subject
to a statute of limitations defense not applicable to any of the
named Plaintiffs.
Plaintiffs respond by invoking the “continuing violation
doctrine, which provides that the statute of limitations may be
tolled by a continuing unlawful . . . practice.”
Hall v. City of
Clarksburg, No. 1:14CV90, 2016 WL 5680218, at *4 (N.D. W. Va. Sept.
30, 2016).
In Plaintiffs’ view, the fact that their licenses
29
remain revoked indefinitely means that the statute of limitations
is also tolled indefinitely.
While Plaintiffs’ view is not without superficial support,
see Va. Hosp. Ass’n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989)
(“[T]he
continued
enforcement
of
an
unconstitutional
statute
cannot be insulated by the statute of limitations.”), the Fourth
Circuit has clarified that “[a] continuing violation is occasioned
by continual unlawful acts, not continual ill effects from an
original violation,” Raleigh, 947 F.2d at 1166 (quoting Ward v.
Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)).
In the context of
the enforcement of allegedly unconstitutional laws, the question
is whether the particular enforcement challenged “is a single act,”
in which case “the statute begins to run at the time of the act,”
or whether the enforcement “does not occur at a single moment but
in a series of separate acts,” in which case “the limitations
period begins anew with each violation.”
Id. at 1167 (quoting
Perez v. Laredo Junior Coll., 706 F.2d 731, 733 (5th Cir. 1983)).
In the instant case, the DMV’s revocation of driver’s licenses is
a “single act” — the fact that licenses remain revoked thereafter
does not evince “a series of separate acts” in which the DMV
revokes the driver’s licenses anew each day.18
18
See id. (“The
Plaintiffs argue that the DMV’s website, which reminds traffic
defendants
that
their
driver’s
licenses
will
remain
revoked
“indefinitely until [they] have complied with [their] case,” shows that
the Commissioner “is continuing to enforce th[e] illegal statute” against
them. (Doc. 50 at 8 & n.3.) A notice of this type is “not a new wrongful
30
restriction on use . . . occurred upon enactment of the ordinance.
No City action since then has added to [the plaintiff’s] alleged
injury.”).
As a result, it does not appear that the continuing
violation doctrine would save the claims of proposed Revoked Class
members whose licenses were revoked more than three years prior to
filing.19
This is a problem for typicality.
See Kirkman v. N.C.
R.R. Co., 220 F.R.D. 49, 53 (M.D.N.C. 2004).
Nevertheless, as Plaintiffs indicate, there is little reason
why
a
solitary
typicality
issue
applicable
to
an
easily-
identifiable and excludable group of proposed class members should
preclude certification altogether.
Instead, the court will simply
exercise its discretion to define the proposed Revoked Class to
include only those proposed class members within the three-year
limitations period: those drivers whose licenses were revoked on
act, but merely a reminder of the restriction” imposed at the time of
the original alleged violation. Raleigh, 947 F.2d at 1167. Since the
DMV’s website is not “add[ing] to [Plaintiffs’] alleged injury,” each
time they view it, it does not evince continuing “separate acts”
sufficient to invoke the continuing violation doctrine. Id.
19
At first glance, the court’s conclusion that there is no “continuing
violation” in the statute of limitations context may appear in tension
with its earlier conclusion that there is an “ongoing violation” for
purposes of the Ex Parte Young analysis. See Part II.A.2, supra. But
the similarity of these shorthand terms belies a fundamental difference
in the underlying doctrines: the “continuing violation” exception to
statutes of limitations “is occasioned by continual unlawful acts, not
continual ill effects from an original violation,” Raleigh, 947 F.2d at
1166, whereas the “ongoing violation” requirement of Ex Parte Young is
satisfied by “presently experienced harmful consequences of past
conduct.” Allen, 134 F.3d at 628.
31
or after May 30, 2015.20
See Roman, 550 F.2d at 1348 (noting the
district court’s broad discretion in how to define a class).
4.
Certification
Having resolved the Commissioner’s objections, and upon its
own investigation of the requirements of Rule 23(a) and (b)(2),
the court finds that class certification is warranted.
The court
will therefore certify the following two classes:
Revoked Class: All individuals whose driver’s licenses
were revoked by the DMV on or after May 30, 2015, due to
their failure to pay fines, penalties, or court costs
assessed by a court for a traffic offense, and whose
driver’s licenses remain so revoked.21
Future Revocation Class: All individuals whose driver’s
licenses will be revoked in the future by the DMV due to
their failure to pay fines, penalties, or court costs
assessed by a court for a traffic offense.
As noted, the court’s certification of these classes is without
determination of the ultimate merits of Plaintiffs’ remaining
claims.
20
The Commissioner suggests that the cut-off date should be three years
prior to the filing of the amended complaint. (Doc. 47 at 22.) But
since the amended complaint asserts claims arising out of the conduct
set out in the original complaint, the amended complaint relates back
to the original complaint. Fed. R. Civ. P. 15(c)(1)(B).
21
Although Plaintiffs’ proposed class is not expressly limited to those
individuals whose licenses remain revoked, Plaintiffs’ admission at the
hearing that Smoot’s claims have been mooted by her successful payment
of her traffic fines and fees evinces such an understanding. Moreover,
Plaintiffs have not explained how drivers whose licenses have been
reinstated would be victims of any “ongoing violation” under Ex Parte
Young.
32
5.
Appointment of Class Counsel
Plaintiffs also move for appointment of class counsel under
Rule 23(g), which requires that the court consider the following:
(i) the work counsel has done in identifying or
investigating potential claims in the action; (ii)
counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in
the action; (iii) counsel’s knowledge of the applicable
law; and (iv) the resources that counsel will commit to
representing the class[.]
Fed. R. Civ. P. 23(g)(1)(A).
In sum, “[c]lass counsel must fairly
and adequately represent the interests of the class.”
Fed. R.
Civ. P. 23(g)(4).
Plaintiffs are represented by Samuel Brooke, Kristi Graunke,
Danielle Davis, and Emily Early of the Southern Poverty Law Center
(“SPLC”); Christopher Brook, Cristina Becker, and Sneha Shah of
the North Carolina ACLU (“NC-ACLU”); Nusrat Choudhury and R. Orion
Danjuma of the national ACLU (“ACLU”); and Jeffery Loperfido of
the Southern Coalition for Social Justice (“SCSJ”).
Plaintiffs
have filed the declaration of Samuel Brooke, in which he summarizes
the
extensive
civil
rights
accomplishments
of
(Doc.
Defendants
6.)
these
and
class
attorneys
have
and
not
action
their
experience
and
organizations.22
disputed
Plaintiffs’
characterization of their attorneys as experienced, knowledgeable,
22
Brooke does not discuss Loperfido’s qualifications, since he joined
the case at a later date. (Doc. 42.) However, the court is familiar
with the SCSJ from prior litigation, and Loperfido’s appointment to the
large team of proposed class counsel is not opposed.
33
and capable of investing sufficient resources into this case.
The court has reviewed the requirements of Rule 23(g) and
concludes
that
Plaintiffs’
proposed
class
counsel
qualified to represent the two classes in this case.
are
well
Accordingly,
Plaintiffs’ SPLC, NC-ACLU, ACLU, and SCSJ counsel will be appointed
class counsel.
C.
Plaintiffs’ Motion for Preliminary Injunction
Finally, Plaintiffs move for preliminary injunction pursuant
to Federal Rule of Civil Procedure 65:23
(1) to enjoin Section 20-24.1(a)(2) and (b)(3)–(4); (2)
to bar the DMV from revoking licenses for non-payment
under Section 20-24.1(a)(2); and (3) to lift current
license revocations entered under Section 20-24.1(a)(2)
and reinstate those licenses without charging a
reinstatement fee if there are no other bases for the
revocation — pending the ultimate determination of the
merits of Plaintiffs’ claims.
(Doc. 39 at 8.)
The Commissioner opposes the motion primarily on
the ground that Plaintiffs are not likely to succeed on the
merits.24
23
At the motions hearing, Plaintiffs expressed a desire for “a
simultaneous ruling on both the motion for preliminary injunction and
the motion for class certification” such that the court’s ruling on the
motion for preliminary injunction would apply class-wide.
24
The Commissioner uses the terms “temporary restraining order” and
“preliminary injunction” interchangeably throughout his response brief,
including an argument that Plaintiffs’ “motion for a preliminary
injunction should be denied” because “reinstatement of Plaintiff[s’]
licenses would go well beyond the intended purpose of temporary
restraining orders under [Federal Rule of Civil Procedure] 65(b).” (Doc.
45 at 9.) Plaintiffs have not moved for a temporary restraining order,
nor is Rule 65(b) relevant to their preliminary injunction motion.
34
“A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction
is in the public interest.”
Winter v. Nat’l Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008).
It is not enough for a plaintiff to
satisfy some factors but not others; “each preliminary injunction
factor [must] be satisfied as articulated.”
Pashby v. Delia, 709
F.3d 307, 320 (4th Cir. 2013) (internal quotation marks omitted);
Mountain Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship,
___ F.3d ___, 2019 WL 1140648, at *5 (4th Cir. Mar. 13, 2019).
As
to the first factor, “plaintiffs need not show a certainty of
success,” but must “make a clear showing that they are likely to
succeed at trial.”
marks omitted).
Pashby, 709 F.3d at 321 (internal quotation
Because the court has determined that Plaintiffs’
equal protection and substantive due process claim should be
dismissed pursuant to the Commissioner’s motion for judgment on
the pleadings, only Plaintiffs’ claims asserting a violation of
procedural due process are considered here.
1.
Likelihood of Success on the Merits
a.
Opportunity to be Heard
Plaintiffs argue that due process requires the DMV to hold an
ability-to-pay hearing in every case prior to revoking a traffic
defendant’s driver’s license under section 20-24.1(a)(2).
35
The
Commissioner argues that no such hearing is required.
“Procedural due process imposes constraints on governmental
decisions
which
deprive
individuals
of
liberty
or
property
interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment.”
(1976)
(internal
Mathews v. Eldridge, 424 U.S. 319, 332
quotation
marks
omitted).
An
individual’s
property interest in his or her driver’s license is protected by
the Due Process Clause.
See Bell v. Burson, 402 U.S. 535, 539
(1971) (“Once licenses are issued . . . [they] are not to be taken
away without that procedural due process required by the Fourteenth
Amendment.).
“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’”
Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1965)).
The question of what form of hearing
is required — including the “question . . . of timing,” Dixon v.
Love, 431 U.S. 105, 112 (1977) — is addressed through consideration
of the following three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
Mathews, 424 U.S. at 335.
In
the
instant
case,
the
36
statute
provides
that
traffic
defendants may “demonstrate[] to the court that [their] failure to
pay the penalty, fine, or costs was not willful and that [they
are] making a good faith effort to pay or that the penalty, fine,
or costs should be remitted.”
N.C. Gen. Stat. § 20-24.1(b)(4).
If a traffic defendant makes such a demonstration, the court
notifies
the
DMV,
which
“shall
.
.
.
delete[]”
any
pending
revocation order or “restore the person’s license” if revocation
has already become effective.
Id. § 20-24.1(b), (c).
The statute
also lays out a procedure for making this determination: “Upon
motion of a defendant, the court must order that a hearing or trial
be heard within a reasonable time.
Id. § 20-24.1(b1).
In Plaintiffs’ view, this procedure is insufficient because
it requires traffic defendants to move for hearing, rather than
affirmatively mandating that a pre-revocation hearing actually be
held in every case.
In order to evaluate Plaintiffs’ claims that
section 20-24.1 fails to provide traffic defendants with due
process, the court must determine what process is due.
As to the first Mathews factor — the private interest at stake
— the Supreme Court has previously held that a “driver’s interest
. . . in continued possession and use of his license . . . is a
substantial one.”
Mackey v. Montrym, 443 U.S. 1, 11 (1979).
And
the court has no reason to doubt Plaintiffs’ contention that, for
many North Carolinians, the loss of a driver’s license negatively
impacts
individuals’
ability
to
37
get
to
work,
make
doctor’s
appointments, go grocery shopping, and more.
Nevertheless,
“the
Court
has
expressly
held
that
the
[private] interest [in a driver’s license] is not so great as to
require departure from the principle that an evidentiary hearing
is
not
action.”
ordinarily
required
prior
to
adverse
administrative
Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770
F.2d 1228, 1235 (4th Cir. 1985) (citing Dixon, 431 U.S. at 113).
Moreover, the Supreme Court has stated that courts should consider
“[t]he duration of any potentially wrongful deprivation of a
property interest” insofar as it relates to the “timeliness of the
postsuspension review available to a suspended driver,” and that
this consideration “is an important factor in assessing the impact
of official action on the private interest involved.”
Mackey, 443
U.S. at 12 (emphasis added); see also Fusari v. Steinberg, 419
U.S. 379, 389 (1975).
In the present case, the fact that section
20-24.1(b1) guarantees traffic defendants the opportunity to have
a hearing “within a reasonable time” of moving for one lessens
“the impact of official action” on Plaintiffs’ interests.25 Mackey,
443 U.S. at 12.
In sum, while the court certainly “do[es] not disparage the
25
As discussed in footnote 33, infra, Plaintiffs have not provided the
court with any way to determine how long “a reasonable time” under
section 20-24.1(b1) might be in this context. Since Plaintiffs bear the
burden at the preliminary injunction stage of showing they are likely
to succeed on the merits, the court will not count this uncertainty in
their favor.
38
importance
of
a
driver’s
license”
to
Plaintiffs,
and
indeed
recognizes the hardships often attendant to the loss of a driver’s
license, these considerations do not serve to overcome binding
precedent holding that the private interest in driver’s licenses
is insufficient to mandate a pre-revocation evidentiary hearing.
Tomai-Minogue, 770 F.2d at 1235.
The second
Mathews factor is
“the risk of an erroneous
deprivation of [Plaintiffs’] interest[s] through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards.”
threshold
inquiry
is
424 U.S. at 335.
whether
the
In this case, the
revocation
of
a
traffic
defendant’s driver’s license for failure to pay a fine or cost the
traffic defendant was unable to pay is in fact “an erroneous
deprivation”
under
Mathews.
Given
that
there
is
no
equal
protection or substantive due process right not to have one’s
driver’s license revoked for failure to pay without an abilityto-pay determination, the DMV’s revocations cannot be “erroneous”
in that regard.
See Mendoza, 2018 WL 6528011, at *25 (finding
“little risk of erroneous deprivation” where plaintiffs argued
that license revocation without an ability-to-pay determination
violated
their
“fundamental
. . .
constitutional
right
to
an
indigency determination,” given the court’s conclusion that there
is
no
such
right
under
equal
process).
39
protection
or
substantive
due
The more difficult question is whether the North Carolina
legislature’s decision to include a provision allowing traffic
defendants to avoid or undo license revocation by showing that
their “failure to pay . . . was not willful and that [they are]
making
a
good
faith
effort
to
pay,”
N.C.
Gen.
Stat.
§
20-
24.1(b)(4), shows that the legislature did not intend license
revocation to take place when traffic defendants could not pay,
thus
making
Mathews.
such
revocations
“erroneous
deprivations”
under
Plaintiffs argue that the answer must be yes under Bell
v. Burson, 402 U.S. 535 (1971), in which the Supreme Court found
that Georgia could not deny pre-revocation “consideration of an
element essential [under the statutory scheme] to the decision
whether licenses . . . shall be suspended.”
Id. at 542.
The
statutory scheme at issue in Bell required uninsured drivers
involved in traffic accidents to “post[] security to cover the
amount of damages claimed by aggrieved parties in reports of the
accident” or else face license suspension.
Id. at 536.
It also
allowed drivers to avoid or undo license suspension if, “prior to”
or “after suspension has been declared, [there is] a release from
liability or an adjudication of non-liability” for the accident.
Id. at 541.
important
“Since the statutory scheme makes liability an
factor
in
the
State’s
determination
to
deprive
an
individual of his license[],” wrote the Bell Court, “the State may
not, consistently with due process, eliminate consideration of
40
that factor in its prior hearing.”26
Id.; see also Conn. Dep’t of
Pub. Safety v. Doe, 538 U.S. 1, 8 (2003) (“Plaintiffs who assert
a right to a hearing under the Due Process Clause must show that
the facts they seek to establish in that hearing are relevant under
the statutory scheme.”).
The Commissioner responds that the better analogue on this
factor is Dixon v. Love, 431 U.S. 105 (1977), in which the Supreme
Court found that there was little risk of erroneous deprivation
absent a pre-deprivation hearing where Illinois suspended driver’s
licenses for accumulation of too many “points” assigned for traffic
violations.
Id. at 107–08, 113–14.
Crucial to the Dixon Court’s
treatment of this Mathews factor, however, was that the driver’s
only potential argument at his requested hearing would be a dubious
plea
for
the
Secretary
of
State
regulations” and “show leniency.”27
assertion
in
Dixon
that
Illinois
to
“depart
Id. at 114.
had
intended
from
his
own
There was no
a
“leniency”
determination to be relevant at all to license revocation, much
less made it “an important factor in the State’s determination to
deprive an individual of his license[],” Bell, 402 U.S. at 541.28
26
Georgia already provided a hearing under the statutory scheme at issue
in Bell, but it “exclude[d] consideration of the motorist’s fault or
liability for the accident” at that hearing. 402 U.S. at 536.
27
As to the possibility of “clerical error,” the Dixon Court found that
“written objection” sufficed to “bring a matter of that kind to the
Secretary’s attention.” 431 U.S. at 113.
28
In a footnote, Dixon briefly discussed a slightly more analogous
41
As a result, Dixon’s “erroneous deprivation” analysis does
not preclude Bell’s relevance to a case, like this one, where
Plaintiffs do cite a clear statutory basis for the issue they wish
to address at a hearing.
Applying Bell, the court finds that
ability to pay is “an important factor” in North Carolina’s
statutory scheme much as accident liability was in the Georgia
statutory scheme at issue in Bell.
In both cases, the statute
allows drivers to utilize the exception to revocation both “prior
to” or “after” revocation takes place.
N.C. Gen. Stat. § 20-24.1(b), (c).
Bell, 402 U.S. at 541; see
In both cases, the “important”
nature of the relevant exception is shown through the statutory
mandate that “no suspension [be] worked” under its provisions if
the exception is satisfied.
Stat. § 20-24.1(b), (c).
Bell, 402 U.S. at 541; see N.C. Gen.
In sum, because section 20-24.1 makes
inability to pay an express exception to revocation, the revocation
of a driver’s license under that statute despite inability to pay
would constitute an “erroneous deprivation” under Mathews.
Bell,
402 U.S. at 541;29 see Doe, 538 U.S. at 8.
“erroneous deprivation” argument: that revoking a driver’s license when
the driver qualified for a “restricted permit” under a statutory
“hardship exception[]” would be an “erroneous deprivation.” 431 U.S.
at 114 n.10. However, the Court found that such a revocation would not
be erroneous because the Illinois statute manifestly “contemplate[d]
relief only after the initial decision to suspend or revoke is made.”
Id. (emphasis added). This reasoning does not apply in the instant case
because the statute plainly contemplates relief both before and after
revocation. Compare N.C. Gen. Stat. § 20-24.1(b) with id. § 20-24.1(c).
29 Bell did not use the phrase “erroneous deprivation,” which was coined
in Mathews five years later as part of the establishment of a more
42
Nevertheless, the question of whether such revocations are
actually erroneous is only the threshold inquiry under the second
Mathews factor.
Having made this determination, the court must
now consider the extent to which the statutory procedures (or lack
thereof)
increase
deprivations.
or
mitigate
Mathews,
424
the
U.S.
“risk”
at
335.
of
those
It
is
erroneous
here
that
Plaintiffs falter, as they have not persuasively argued that the
hearing already provided for by section 20-24.1(b1) fails to
substantially
alleviate
the
risk
of
erroneous
deprivations.
Plaintiffs only address this crucial opportunity for a hearing
once in their briefing on this issue, and their sole reference is
to say that “[r]elief from indefinite license revocation is . . .
conditioned on the individual knowing about, and affirmatively
seeking, a hearing on ability to pay, which is entirely undermined
by the insufficient notice the DMV sends the driver.”
23.)
(Doc. 39 at
This is a conflation of issues, as there is a separate
standard applicable to the issue of whether the State has provided
sufficient notice of the opportunity for a hearing under the Due
Process Clause.
See Mullane v. Cent. Hanover Bank & Tr. Co., 339
U.S. 306, 314 (1950) (requiring “notice reasonably calculated,
under all the circumstances, to apprise interested parties of the
comprehensive procedural due process test. While Mathews and later cases
“represent[] some shift from the approach earlier followed by the Court
in Bell,” Tomai-Minogue, 770 F.2d at 1235, the Supreme Court has repeated
Bell’s reasoning on this specific point well into the Mathews era. See
Doe, 538 U.S. at 8.
43
pendency of the action and afford them an opportunity to present
their objections”).
This same conflation of issues appears to be what undergirds
Plaintiffs’ general theory that the State must affirmatively hold
an ability-to-pay hearing before revocation in every case whether
or not the particular traffic defendant wants it.
At the hearing,
Plaintiffs’ counsel argued that the section 20-24.1(b1) hearing
was insufficient under due process because traffic defendants
“don’t know about it” and “don’t realize they can” get an abilityto-pay hearing if they ask for one.
Again, this argument does not
relate to whether section 20-24.1 provides an opportunity for a
hearing, but rather whether the State has provided the “notice
required by the Due Process Clause . . . to ensure that the
opportunity for a hearing is meaningful.”
City of West Covina v.
Perkins, 525 U.S. 234, 240 (1999) (emphasis added).
Indeed,
holding notice constant, Plaintiffs would be no better off under
their own reasoning if North Carolina mandated ability-to-pay
hearings
in
every
case
prior
to
revocation,
since
traffic
defendants would still not “know about it.”
To
be
sure,
the
notice
requirement
of
due
process
is
“obviously a vital corollary to . . . the right to be heard.”
Schroeder v. City of New York, 371 U.S. 208, 212 (1962).
The court
will fully address Plaintiffs’ notice arguments on their merits
below, in the context of Plaintiffs’ separately-pleaded notice
44
claim.30
But as to the issue whether the section 20-24.1(b1)
hearing itself is sufficient to address the risk of erroneous
deprivations, Plaintiffs’ arguments as to this Mathews factor
provide little basis for their theory that North Carolina must
actually hold an ability-to-pay hearing in every case.
In cases
in which the Due Process Clause has been found to require prerevocation process before a person is deprived of a property
interest, it has generally been found to require only that an
“opportunity for [a] hearing” be provided, Mullane, 339 U.S. at
313, not that a hearing be actually held in every case.31
In fact,
although Plaintiffs cite a three-judge panel decision of this
district as allegedly “affirming [a] statute requiring [a] hearing
before suspension” (Doc. 39 at 23), that case actually states that
the Due Process Clause requires only that the State hold a hearing
for licensees who ask for one: “[I]f the state provides upon
request [a hearing] at which the licensee has a fair opportunity
30
Even if the court were to consider the adequacy of the notice provided
to traffic defendants as part of the “opportunity to be heard” inquiry,
it would find that notice sufficient for the same reasons explained in
part II.C.1.b. of this opinion.
31
To the extent that Bell could be read otherwise, the Fourth Circuit
has stated that “[t]he Mathews test, as adopted in Dixon for driver’s
license deprivation claims, represents some shift from the approach
earlier followed by the Court in Bell, which mandated a pre-deprivation
hearing.” Tomai-Minogue, 770 F.2d at 1235. Moreover, the Bell Court
had no cause to distinguish between holding pre-deprivation hearings in
every case and providing a pre-deprivation opportunity for a hearing,
since the State in Bell was already holding pre-deprivation hearings in
every case. The problem in Bell was that drivers were disallowed from
addressing a statutorily material issue at that pre-deprivation hearing.
45
to
[make
his
case],
then
due
process
will
surely
have
been
satisfied.” Jones v. Penny, 387 F. Supp. 383, 395 (M.D.N.C. 1974);
see also Mackey, 443 U.S. at 18 (equating giving drivers “[a]
presuspension hearing” with giving drivers the ability to “demand
a presuspension hearing”).
And Plaintiffs make no argument that
the actual manner in which a section 20-24.1(b1) hearing is
conducted is deficient in some way — indeed they cannot, since no
named Plaintiff has invoked his or her section 20-24.1(b1) right
to a hearing.32
In sum, the court finds that section 20-24.1(b1)’s mandate
that traffic defendants be provided a hearing “within a reasonable
time” of moving for one substantially alleviates, and may very
well eliminate, the risk of erroneous deprivations under the
statute.33
As a result, the second Mathews factor does not command
32
While Plaintiffs’ counsel represented at the motions hearing that
Bonhomme-Dicks told the state court at her initial traffic appearance
that she was unable to pay, this exchange appears to have taken place
prior to any fine or costs being imposed in the first place.
As a
result, the state court appears to have interpreted it as a challenge
to the imposition of a fine or costs as punishment for the traffic
offense, concluding that it would not impose a fine but would impose
costs.
As Plaintiffs stress elsewhere, they do not challenge the
original imposition of fines or costs for traffic violations; they
challenge only the license revocations for a subsequent failure to pay
those fines or costs. It does not appear that Bonhomme-Dicks exercised
her statutory right to move after the imposition of costs for a section
20-24.1(b1) hearing to show that her subsequent “failure to pay . . .
was not willful” and that she was “making a good faith effort to pay,”
N.C. Gen. Stat. 20-24.1(b)(4).
33
To the extent Plaintiffs contend that the “reasonable time” allowed
for in the statute would not always guarantee the movant a hearing prior
to the deprivation, they have given the court no reason to think that
it does not. Traffic defendants are given 40 extra days to pay their
46
that additional process be required under the Due Process Clause.
As to the third and final Mathews factor — the governmental
interest at stake — the Supreme Court has specifically recognized
in the driver’s license revocation context that “the substantial
public interest in administrative efficiency would be impeded by
the availability of a pretermination hearing in every case.”
Dixon, 431 U.S. at 114; see also Mackey, 443 U.S. at 18 (increasing
the number of pre-revocation hearings would “impose a substantial
fiscal and administrative burden on the Commonwealth”).
This sort
of governmental interest “is not a controlling weight” in the
Mathews analysis; however, “the Government’s interest, and hence
that of the public, in conserving scarce fiscal and administrative
fines and costs before the court notifies the DMV of their failure to
pay, see N.C. Gen. Stat. § 20-24.2(a)(2), and another 60 days after the
DMV sends the revocation order before revocation becomes effective, see
id. § 20-24.1(a). No named Plaintiff moved for a section 20-24.1(b1)
hearing at any point during this 100-day window, nor does the court have
any information on how any North Carolina court has ever treated such a
motion. A preliminary injunction is an “extraordinary remedy,” and it
is up to Plaintiffs to affirmatively “establish that [they are] likely
to succeed on the merits.” Winter, 555 U.S. at 20, 22. Any contention
that North Carolina courts would fail in a meaningful number of cases
to provide a statutory pre-revocation hearing within that 100-day window
if one were timely requested is purely speculative on this record.
Moreover, even if some traffic defendants experience brief license
revocation before their hearing takes place, the Fourth Circuit has found
that where the “possible causes for erroneous deprivation” of a driver’s
license in a small number of cases “are all remediable in [a] postdeprivation [opportunity to be heard],” the Due Process Clause does not
require additional process to ensure that no “temporary inconvenience”
is caused by the temporary revocation. Tomai-Minogue, 770 F.2d at 1235;
see also id. at 1235–36 (“Where an adverse judgment has not been
satisfied by a motorist, Virginia has opted to suspend the license now
and discuss the matter later. We decline to undercut that legitimate
choice by requiring the taking to be later and the talking to be first.”).
47
resources is a factor that must be weighed.”
Mathews, 424 U.S. at
348.
Together, the substantial public interest at issue and the
fact
that
section
20-24.1(b1)
erroneous deprivations
already
mitigates
the
risk
of
by providing an ability-to-pay hearing
“within a reasonable time” to anyone who requests it weigh against
a finding that North Carolina must provide additional process.
And as previously noted, “the [Supreme] Court has expressly held
that the [private] interest [in a driver’s license] is not so great
as to require departure from the principle that an evidentiary
hearing is not ordinarily required prior to adverse administrative
action.”
Tomai-Minogue, 770 F.2d at 1235 (citing Dixon, 431 U.S.
at 113);34 see also Mackey, 443 U.S. at 12 (burden on private
interest in driver’s license lessened when “postsuspension review
available to a suspended driver” is “timel[y]”).
As a result,
Plaintiffs have not shown that they are likely to succeed on their
“opportunity to be heard” procedural due process claim, and the
court therefore declines to grant a preliminary injunction on that
basis.
Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
34
While Dixon’s reasoning on what constitutes an “erroneous deprivation”
and “the important public interest in safety on the roads and highways”
is not applicable here, the opposite is true of its discussion of “[t]he
private interest . . . [in] the granted license to operate a motor
vehicle” and “the substantial public interest in administrative
efficiency.” 431 U.S. at 113–14.
48
merits . . . .”).
b.
Notice
Plaintiffs’ final claim, and their final proffered basis for
demonstrating a likelihood of success on the merits, is that “[t]he
DMV fails to provide adequate notice to drivers either before or
after licenses are revoked for failure to pay fines and costs, in
violation of the Due Process Clause.”
of
Plaintiffs’
grievance
is
the
(Doc. 35 ¶ 149.)
one-page
The focus
revocation
order,
entitled “Official Notice,” that the DMV sends traffic defendants
pursuant to section 20-24.1(a) upon receiving notice from a state
court that the traffic defendant has failed to pay a fine or cost.
See (Doc. 55 ¶ 4).
The first full paragraph of the Official Notice states:
WE REGRET TO INFORM YOU THAT EFFECTIVE [time and date],
YOUR NC DRIVING PRIVILEGE IS SCHEDULED FOR AN INDEFINITE
SUSPENSION IN ACCORDANCE WITH GENERAL STATUTE 20-24.1
FOR FAILURE TO PAY FINE AS FOLLOWS:
(Doc. 35 ¶ 32.)
The Official Notice then lists the traffic
defendant’s violation date and citation number, as well as the
name and phone number of the state court handling the traffic
violation.
(Id.)
The Official Notice continues:
UNFORTUNATELY THE DIVISION OF MOTOR VECHICLES CANNOT
ACCEPT PAYMENTS FOR FINES AND COSTS IMPOSED BY THE
COURTS. PLEASE CONTACT THE COURT ABOVE TO COMPLY WITH
THIS CITATION.
NOTE: PLEASE COMPLY WITH THIS CITATION PRIOR TO THE
EFFECTIVE DATE IN ORDER TO AVOID THIS SUSPENSION.
49
IF YOU HAVE NOT COMPLIED WITH THIS CITATION BY THE
EFFECTIVE DATE OF THIS ORDER, YOU WILL NEED TO MAIL YOUR
CURRENT NORTH CAROLINA DRIVER LICENSE, IF APPLICABLE, TO
THE DIVISION.
FAILURE TO DO SO MAY RESULT IN AN
ADDITIONAL $50.00 SERVICE FEE.
REINSTATEMENT PROCEDURES:
UPON COMPLIANCE WITH THIS CITATION, YOU MAY VISIT YOUR
LOCAL DRIVER LICENSE OFFICE.
AT SUCH TIME PROPER
IDENTIFICATION AND PROOF OF AGE WILL BE NEEDED.
A RESTORATION FEE OF $65.00 AND THE APPROPRIATE LICENSE
FEES ARE NEEDED AND HAVE TO BE PAID AT THE TIME YOUR
DRIVING PRIVILEGE IS REINSTATED.
THIS ORDER IS IN ADDITION TO AND DOES NOT SUPERSEDE ANY
PRIOR ORDER ISSUED BY THE DMV. IF ADDITIONAL INFORMATION
CONCERNING THIS ORDER IS NEEDED, PLEASE CONTACT A
REPRESENTATIVE OF THE DIVISION AT (919) 715-7000.
DIRECTOR OF PROCESSING SERVICES
(Id.)
As Plaintiffs point out, nowhere does the Official Notice
mention that traffic defendants can prevent or reverse their
license revocation by demonstrating their inability to pay under
section 20-24.1(b)(4), nor does it mention the option of requesting
an ability-to-pay hearing under section 20-24.1(b1).
Instead, it
merely directs recipients to “comply with this citation.”
(Id.)
In Plaintiffs’ view, the Official Notice’s failure to notify
traffic defendants of the statute’s ability-to-pay and hearing
provisions makes it “critically misleading” and insufficient under
the Due Process Clause.
(Doc. 39 at 27.)
The Commissioner
responds that the “North Carolina[] statute provides” notice and
that “procedural due process does not require” individualized
50
notice.
(Doc. 45 at 21.)
As discussed previously, the notice requirement of the Due
Process Clause “ensure[s] that the opportunity for a hearing is
meaningful.”
West Covina, 525 U.S. at 240; see also Mullane, 339
U.S. at 314 (“Th[e] right to be heard has little reality or worth
unless one is informed that the matter is pending and can choose
for himself whether to appear or default, acquiesce or contest.”).
To be sufficient, notice must be “reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections.”
insufficient.
Mullane, 339 U.S. at 314.
Id. at 315.
A “mere gesture” is
While this requirement sometimes
mandates individualized notice, the Supreme Court has held that it
does not require “individualized notice of state-law remedies
which . . . are established by published, generally available state
statutes.”
West Covina, 525 U.S. at 241; see also id. (“Once the
property owner is informed that his property has been seized, he
can turn to these public sources to learn about the remedial
procedures available to him.”).
In this case, there is a publicly available state statute
that
clearly
lays
out
the
procedures
defendants facing license revocation.
available
to
traffic
Compare N.C. Gen. Stat.
§ 20-24.1 with Stinnie, 355 F. Supp. 3d at 529 (explaining that
West Covina does not control as to the notice issue in a challenge
51
to a Virginia license revocation statute because the Virginia
statute
does
not
provide
for
any
opportunity
to
be
heard).
Plaintiffs make no argument — nor would such an argument be
persuasive — that section 20-24.1 is insufficiently clear about
these
procedures.
Instead,
Plaintiffs
argue
that
the
individualized Official Notice undermines the statutory notice by
failing to mention all the relevant statutory provisions.
This
argument is unpersuasive, as West Covina relies on a presumption
that property owners “can turn to . . . public sources” for notice
when those sources adequately describe the relevant procedures.
Even if the court were to recognize an exception to the West Covina
presumption where a state misleads people who otherwise would have
turned to a publicly-available statute, such an exception could
hardly apply here in light of the fact that the Official Notice
directly cites to section 20-24.1 in its first sentence.
(Doc. 35
¶ 32); cf. Nnebe v. Daus, 184 F. Supp. 3d 54, 74 (S.D.N.Y. 2016)
(finding that notice was sufficient under the Due Process Clause
where — inter alia — the individualized notice documents, despite
“not
contain[ing]”
some
important
information
about
the
opportunity to be heard “on their face,” directly cited to a
publicly available document containing the information).35
35
While,
Plaintiffs’ counsel suggested at the hearing that the cases cited in
their briefing “implicitly” say that “if the [individualized] notice
goes out and tells someone something, they should be able to rely on
what [it says].”
However, most of the “misleading notice” cases
Plaintiffs cite predate West Covina, and the few that do not fail to
52
absent the statute, the Official Notice would not on its own
provide sufficient notice, it is not so affirmatively misleading
as to destroy the sufficient notice provided by the statute to
which it directly cites: “GENERAL STATUTE 20-24.1.”
(Doc. 35
¶ 32.)
2.
Outcome of Motion for Preliminary Injunction
In conclusion, Plaintiffs have not shown that they are likely
to succeed on either of their remaining claims under the Due
Process Clause.
Because Plaintiffs’ failure to satisfy any one of
the four preliminary injunction factors is fatal to their motion,
the court need not address the remaining factors and the motion
will be denied.
preliminary
See Pashby, 709 F.3d at 320 (stating that “each
injunction
factor
[must]
be
satisfied”
(internal
quotation marks omitted)).
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that the Commissioner’s motion for
judgment on the pleadings (Doc. 46) is GRANTED IN PART and DENIED
IN PART in that Plaintiffs’ first claim is DISMISSED WITH PREJUDICE
but their second and third claims survive insofar as they have not
been challenged at this stage.
IT IS FURTHER ORDERED that Plaintiffs’ second motion for class
address that decision.
itself.
Further, one of Plaintiffs’ cited cases is Nnebe
53
certification (Doc. 36) is GRANTED IN PART and that the following
two classes are certified:
Revoked Class: All individuals whose driver’s licenses
were revoked by the DMV on or after May 30, 2015, due to
their failure to pay fines, penalties, or court costs
assessed by a court for a traffic offense, and whose
driver’s licenses remain so revoked.
Future Revocation Class: All individuals whose driver’s
licenses will be revoked in the future by the DMV due to
their failure to pay fines, penalties, or court costs
assessed by a court for a traffic offense.
IT IS FURTHER ORDERED that Plaintiffs’ second motion for
preliminary injunction (Doc. 38) is DENIED.
/s/
Thomas D. Schroeder
United States District Judge
March 31, 2019
54
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