U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:17−cv−00005

BROWN

Thomas et al v. Haslam et al Assigned to: District Judge Aleta A. Trauger related Case: 3:17−cv−01263 Case in other court: 6CCA, 18−05766 Cause: 42:1983 Civil Rights Act
Plaintiff
James Thomas

Date Filed: 01/04/2017 Date Terminated: 09/30/2019 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Jonathan Jacob Cole Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Nash) 211 Commerce Street Suite 800 Nashville, TN 37201 (615) 726−5600 Email: jcole@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew G. White Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Memphis) 165 Madison Avenue Suite 2000 Memphis, TN 38103 (901) 577−8182 Fax: (901) 577−0724 Email: mwhite@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Gerstein Civil Rights Corps 916 G Street NW Suite 701 Washington, DC 20001 202−670−4809 Email: charlie@civilrightscorps.org ATTORNEY TO BE NOTICED

Claudia Wilner National Center for Law and Econimic Justice 275 Seventh Avenue Suite 1506 New York, NY 10001 (212) 633−6967 Fax: (212) 633−6371 Email: wilner@nclej.org ATTORNEY TO BE NOTICED

Case: 3:17-cv-5

Edward P. Krugman Civil Rights Corps 1601 Connecticut Ave. NW Eighth Floor Washington, DC 20009 (202) 780−7594 Email: krugman@nclej.org
As of: 08/07/2020 05:44 PM CDT 1 of 16

ATTORNEY TO BE NOTICED

Francisca Fajana National Center for Law and Econimic Justice 275 Seventh Avenue Suite 1506 New York, NY 10001 212−633−6967 Email: fajana@nclej.org ATTORNEY TO BE NOTICED

Jonas Wang Civil Rights Corps 1601 Connecticut Ave. NW Eighth Floor Washington, DC 20009 (202) 599−0953 Fax: (202) 609−8030 Email: jonas@civilrightscorps.org TERMINATED: 06/17/2019

Josh Spickler Just City 902 South Cooper Street Memphis, TN 38104 901−206−2226 Email: josh@justcity.org ATTORNEY TO BE NOTICED

Lori H. Patterson Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Memphis) 165 Madison Avenue Suite 2000 Memphis, TN 38103 (901) 577−8182 Fax: (901) 577−0724 Email: lpatterson@bakerdonelson.com ATTORNEY TO BE NOTICED

Petra T. Tasheff National Center for Law and Econimic Justice 275 Seventh Avenue Suite 1506 New York, NY 10001 212−633−6967 Email: tasheff@nclej.org ATTORNEY TO BE NOTICED

Premal Dharia Civil Rights Corps 1601 Connecticut Ave. NW Eighth Floor Washington, DC 20009 (202) 780−7594 Email: premal@civilrightscorps.org TERMINATED: 08/12/2019

Case: 3:17-cv-5

Theresa Lau National Center for Law and Econimic Justice 275 Seventh Avenue Suite 1506
As of: 08/07/2020 05:44 PM CDT 2 of 16

Plaintiff David Hixson

New York, NY 10001 (212) 633−6967 Email: lau@nclej.org ATTORNEY TO BE NOTICED
represented by Charles Gerstein (See above for address) ATTORNEY TO BE NOTICED
Claudia Wilner (See above for address) ATTORNEY TO BE NOTICED
Edward P. Krugman (See above for address) ATTORNEY TO BE NOTICED
Francisca Fajana (See above for address) ATTORNEY TO BE NOTICED
Jonas Wang (See above for address) TERMINATED: 06/17/2019
Jonathan Jacob Cole (See above for address) ATTORNEY TO BE NOTICED
Josh Spickler (See above for address) ATTORNEY TO BE NOTICED
Lori H. Patterson (See above for address) ATTORNEY TO BE NOTICED
Matthew G. White (See above for address) ATTORNEY TO BE NOTICED
Petra T. Tasheff (See above for address) ATTORNEY TO BE NOTICED
Premal Dharia (See above for address) TERMINATED: 08/12/2019
Theresa Lau (See above for address) ATTORNEY TO BE NOTICED

V.

Defendant

Bill Haslam Governor of Tennessee, in his official capacity TERMINATED: 10/10/2017

represented by Alexander Stuart Rieger Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−2408 Fax: (615) 532−5683

Case: 3:17-cv-5 As of: 08/07/2020 05:44 PM CDT 3 of 16

Email: alex.rieger@ag.tn.gov ATTORNEY TO BE NOTICED

Andrew B. Campbell Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 532−0356 Fax: (615) 532−6951 Email: andrew.campbell@ag.tn.gov ATTORNEY TO BE NOTICED

Katherine Dix Federal Public Defender's Office (MDTN) 810 Broadway Suite 200 Nashville, TN 37203 Email: Katherine_Dix@fd.org TERMINATED: 04/12/2018

Michael Alan Meyer Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−3491 Email: michael.meyer@ag.tn.gov TERMINATED: 10/17/2017

Sara Ohlman Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 532−9631 Fax: (615) 532−2541 Email: sara.ohlman@ag.tn.gov TERMINATED: 06/20/2019

Scott C. Sutherland Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−1868 Fax: (615) 532−7791 Email: scott.sutherland@ag.tn.gov ATTORNEY TO BE NOTICED

Defendant
David W. Purkey Commissioner for the Department of Safety and Homeland Security, in his official capacity

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
Andrew B. Campbell (See above for address) ATTORNEY TO BE NOTICED

Katherine Dix (See above for address) TERMINATED: 04/12/2018

Michael Alan Meyer (See above for address) TERMINATED: 10/17/2017

Sara Ohlman Case: 3:17-cv-5 As of: 08/07/2020 05:44 PM CDT 4 of 16

Defendant
Herbert Slatery, III Attorney General and Reporter, in his official capacity TERMINATED: 10/10/2017

(See above for address) TERMINATED: 06/20/2019
Scott C. Sutherland (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
Andrew B. Campbell (See above for address) ATTORNEY TO BE NOTICED
Katherine Dix (See above for address) TERMINATED: 04/12/2018
Michael Alan Meyer (See above for address) TERMINATED: 10/17/2017
Sara Ohlman (See above for address) TERMINATED: 06/20/2019
Scott C. Sutherland (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/04/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017
01/05/2017 01/05/2017

# Docket Text
1 COMPLAINT against Bill Haslam, David W. Purkey, Herbert Slatery, III (Filing fee PAID $400, Receipt number 0650−2352164), filed by James Thomas, David Hixson. (Attachments: # 1 Attachment Civil Cover Sheet)(hb) (Entered: 01/04/2017)
2 MOTION for attorney(s) Claudia Wilner to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2352967) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing)(White, Matthew) (Entered: 01/05/2017)
3 MOTION for attorney(s) Petra T. Tasheff to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2352973) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing)(White, Matthew) (Entered: 01/05/2017)
4 MOTION for attorney(s) Francisca D. Fajana to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2352978) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing)(White, Matthew) (Entered: 01/05/2017)
5 MOTION for attorney(s) Josh Spickler to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2352982) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing)(White, Matthew) (Entered: 01/05/2017)
6 MOTION to Certify Class by David Hixson, James Thomas. (Attachments: # 1 Attachment Declaration of James Thomas, # 2 Attachment Declaration of David Hixson, # 3 Attachment Attorney Declaration of Claudia Wilner)(White, Matthew) (Entered: 01/05/2017)
7 MEMORANDUM in Support of 6 MOTION to Certify Class filed by David Hixson, James Thomas . (White, Matthew) (Entered: 01/05/2017)
8 Summons issued as to Bill Haslam, David W. Purkey, Herbert Slatery, III. (hb) (Entered: 01/05/2017)

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01/05/2017 01/05/2017
01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/06/2017
01/06/2017
01/06/2017
01/06/2017
01/27/2017 01/27/2017 02/06/2017 02/06/2017 02/07/2017
03/03/2017 03/03/2017 03/03/2017

9 NOTICE/INFORMATION regarding Consent of the Parties to the Magistrate Judge. (hb) (Entered: 01/05/2017)
TN State Bar status verified as active for Lori H. Patterson, Matthew G. White, Josh Spickler, NY State Bar status verified as active for Claudia Wilner, Petra T. Tasheff, MA State Bar status verified as active for Francisca Fajana, and DC State Bar status verified as active for Charles Gerstein. (hb) (Entered: 01/05/2017)
10 SUMMONS returned executed by James Thomas, David Hixson. Bill Haslam served on 1/5/2017. (White, Matthew) (Entered: 01/05/2017)
11 SUMMONS returned executed by James Thomas, David Hixson. Herbert Slatery, III served on 1/5/2017. (White, Matthew) (Entered: 01/05/2017)
12 NOTICE of Initial Case Management Conference set for 4/17/2017 at 01:00 PM in Chambers 825 before District Judge Aleta A. Trauger. (hb) (Entered: 01/05/2017)
13 SUMMONS returned executed by James Thomas, David Hixson. David W. Purkey served on 1/5/2017. (White, Matthew) (Entered: 01/05/2017)
14 ORDER granting 2 Motion for Claudia Wilner to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 1/6/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/06/2017)
15 ORDER granting 3 Motion for Petra T. Tasheff to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 1/6/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/06/2017)
16 ORDER granting 4 Motion for Francisca D. Fajana to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 1/6/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/06/2017)
17 ORDER granting 5 Motion for Josh Spickler to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 1/6/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/06/2017)
18 MOTION for attorney Charles Gerstein to Appear Pro Hac Vice (Fee paid) by David Hixson, James Thomas. (hb) Modified on 2/7/2017 (af). (Entered: 01/30/2017)
19 CERTIFICATE OF GOOD STANDING of Attorney Charles Gerstein from the United States District Court for the Southern District of New York filed by David Hixson, James Thomas. (hb) (Entered: 01/30/2017)
$75 PHV fee rec'd this date for atty Charles Gerstein re DE 18 . (af) (Entered: 02/07/2017)
20 RECEIPT #34675044558 in the amount of $75 re 18 Motion to Appear Pro Hac Vice. (hb) (Entered: 02/07/2017)
21 ORDER granting 18 Motion for Charles Gerstein to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 2/7/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 02/07/2017)
22 NOTICE of Appearance by Michael Alan Meyer on behalf of All Defendants (Meyer, Michael) (Entered: 03/03/2017)
23 MOTION to Dismiss and to Defer Issues Related to Class Certification by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Meyer, Michael) (Entered: 03/03/2017)
24 MEMORANDUM in Support of 23 MOTION to Dismiss and to Defer Issues Related to Class Certification filed by Bill Haslam, David W. Purkey, Herbert Slatery, III . (Meyer, Michael) (Entered: 03/03/2017)

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03/06/2017 03/06/2017 03/14/2017 03/15/2017
05/10/2017 05/12/2017 07/03/2017 07/05/2017 07/26/2017 08/08/2017
08/18/2017 08/18/2017

TN State Bar status verified as active for Michael Alan Meyer. (hb) (Entered: 03/06/2017)
25 ORDER: It is hereby ORDERED that the Motion to Certify Class filed by the plaintiffs on January 5, 2017 (Docket No. 6 ) shall be held in abeyance, pending a decision on the Motion to Dismiss filed March 3, 2017 (Docket No. 23 ). It is so ORDERED. Signed by District Judge Aleta A. Trauger on 3/6/2017. (hb) (Entered: 03/07/2017)
26 Joint MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Dismiss and to Defer Issues Related to Class Certification by David Hixson, James Thomas. (Attachments: # 1 Exhibit 1 − Proposed Order)(White, Matthew) (Entered: 03/14/2017)
27 ORDER: The Joint Motion to Extend Plaintiffs' Deadline to File a Response to Defendants' Motion to Dismiss (Docket No. 26 ) is GRANTED. The deadline for the filing of a response to the pending Motion to Dismiss is hereby extended until May 19, 2017. It is further ORDERED that the initial case management conference scheduled for April 17, 2017 is CONTINUED, to be reset, if appropriate, after disposition of this motion. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 3/15/2017. (hb) (Entered: 03/15/2017)
28 Joint MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Dismiss and to Defer Issues Related to Class Certification by David Hixson, James Thomas. (Attachments: # 1 Exhibit Proposed Order)(White, Matthew) (Entered: 05/10/2017)
29 ORDER granting 28 Motion for Extension of Time to File Response re 23 MOTION to Dismiss and to Defer Issues Related to Class Certification. Signed by District Judge Aleta A. Trauger on 5/12/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 05/12/2017)
30 Joint MOTION for Extension of Time to File Response as to 23 MOTION to Dismiss and to Defer Issues Related to Class Certification by David Hixson, James Thomas. (Attachments: # 1 Exhibit A − Proposed Order)(White, Matthew) Modified on 7/5/2017 (dt). (Entered: 07/03/2017)
31 ORDER granting 30 Motion for Extension of Time to File Response to 23 MOTION to Dismiss. Signed by District Judge Aleta A. Trauger on 7/5/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/05/2017)
32 JOINT MOTION to set Briefing Schedule for Responses and Replies, and for Hearing on Defendants' Motion to Dismiss and Plaintiffs' Motion for Summary Judgment by David Hixson, James Thomas. (Attachments: # 1 Exhibit A − Proposed Order)(White, Matthew) Modified on 7/27/2017 (dt). (Entered: 07/26/2017)
33 ORDER Granting Joint Motion to Set Briefing Schedule: The following deadline shall govern this matter: August 18, 2017 is the deadline for Plaintiffs to file both their Response to Defendants' Motion to Dismiss as well as Plaintiffs' Motion for Summary Judgment, in one single brief with a 40−page limit. August 18, 2017 is the deadline for Plaintiffs to file a Renewed Motion for Class Certification. September 18, 2017 is the deadline for Defendants to file their Reply to Plaintiffs' Response to Motion to Dismiss and their Responses to Plaintiffs' Motion for Summary Judgment and Renewed Motion for Class Certification. October 3, 2017 is the deadline for the filing of Plaintiffs' Replies to Defendants' Responses noted above. Signed by District Judge Aleta A. Trauger on 8/8/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/08/2017)
34 MOTION for attorney(s) Edward P. Krugman to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2502992) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing)(White, Matthew) (Entered: 08/18/2017)
35 MOTION for attorney(s) Premal Dharia to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2503004) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing)(White, Matthew) (Entered: 08/18/2017)

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08/18/2017 08/18/2017 08/18/2017 08/18/2017
08/18/2017 08/18/2017 08/18/2017 08/18/2017 08/21/2017 08/21/2017 08/21/2017 08/22/2017
08/23/2017 09/18/2017 09/18/2017

36 NOTICE OF RENEWED MOTION FOR CLASS CERTIFICATION by David Hixson and James Thomas re 6 MOTION to Certify Class . (White, Matthew) Modified on 8/21/2017 (dt). (Entered: 08/18/2017)
37 MOTION for Summary Judgment by David Hixson, James Thomas. (White, Matthew) (Entered: 08/18/2017)
38 MEMORANDUM in Support of 37 MOTION for Summary Judgment , 23 MOTION to Dismiss and to Defer Issues Related to Class Certification filed by David Hixson, James Thomas Memorandum of Law in Support of Motion for Summary Judgment and in Opposition to Motion to Dismiss. (White, Matthew) (Entered: 08/18/2017)
39 STATEMENT of facts as to which there is no genuine dispute filed by David Hixson, James Thomas in support of 37 Motion for Summary Judgment. (Attachments: # 1 Exhibit AG Opinion 06−135, # 2 Exhibit Email Corr., # 3 Exhibit Transit and Jobs Report, # 4 Exhibit Tenn. Resident Data Table 2, # 5 Exhibit Pivot Table)(White, Matthew) (Entered: 08/18/2017)
40 STIPULATION re 37 MOTION for Summary Judgment Factual Stipulations Between the Parties by David Hixson, James Thomas. (Attachments: # 1 Exhibit Effect of Amendment)(White, Matthew) (Entered: 08/18/2017)
41 DECLARATION of David Hixson filed by David Hixson, James Thomas re: 37 MOTION for Summary Judgment . (White, Matthew) (Entered: 08/18/2017)
42 DECLARATION of James Thomas filed by David Hixson, James Thomas re: 37 MOTION for Summary Judgment . (White, Matthew) (Entered: 08/18/2017)
43 DECLARATION of Edward P. Krugman filed by David Hixson, James Thomas re: 37 MOTION for Summary Judgment . (White, Matthew) (Entered: 08/18/2017)
Note to Filer re DE#34−43: Pursuant to Local Rule 5.01, Certificates of Service shall identify by name the person served, what was served, the method of service, and date of service. Please FILE a conformed Certificate of Service for these documents. (dt) (Entered: 08/21/2017)
44 ORDER granting 34 Motion for Edward P. Krugman to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 8/21/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/21/2017)
45 ORDER granting 35 Motion for Premal Dharia to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 8/21/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/21/2017)
46 CERTIFICATE of service filed by David Hixson, James Thomas re 36 MOTION filed by David Hixson, James Thomas, 42 Declaration filed by David Hixson, James Thomas, 41 Declaration filed by David Hixson, James Thomas, 37 MOTION for Summary Judgment filed by David Hixson, James Thomas, 40 Stipulation filed by David Hixson, James Thomas, 35 MOTION for attorney(s) Premal Dharia to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2503004) filed by David Hixson, James Thomas, 34 MOTION for attorney(s) Edward P. Krugman to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2502992) filed by David Hixson, James Thomas, 38 Memorandum in Support, filed by David Hixson, James Thomas, 43 Declaration filed by David Hixson, James Thomas, 39 Statement of facts, filed by David Hixson, James Thomas. (White, Matthew) (Entered: 08/22/2017)
NY State Bar status verified as active for Edward P. Krugman. DC State Bar status verified as active for Premal Dharia. (dt) (Entered: 08/23/2017)
47 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motions for Class Certification and Summary Judgment by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Meyer, Michael) (Entered: 09/18/2017)
48 Amended MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motions for Class Certification and Summary Judgment by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Meyer, Michael) (Entered: 09/18/2017)

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09/19/2017

49 ORDER granting 48 Motion for Extension of Time to File Response/Reply re 6 MOTION to Certify Class and 37 MOTION for Summary Judgment. Replies due by 10/18/2017.Signed by District Judge Aleta A. Trauger on 9/19/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2017)

09/19/2017

50 ORDER denying as moot 47 Motion for Extension of Time to File Response/Reply. Signed by District Judge Aleta A. Trauger on 9/19/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2017)

09/29/2017

51 ORDER: The plaintiffs have filed a Renewed Motion for Class Certification (Docket No. 36). It is therefore ORDERED that the Motion for Class Certification filed on January 5, 2017 (Docket No. 6) shall be TERMED by the Clerk. Signed by District Judge Aleta A. Trauger on 9/29/2017. (ds) (Entered: 09/29/2017)

10/06/2017 52 NOTICE of Appearance by Andrew B. Campbell on behalf of Bill Haslam, David W. Purkey, Herbert Slatery, III (Campbell, Andrew) (Entered: 10/06/2017)

10/09/2017 53 Joint MOTION to Set Revised Briefing Schedule by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Campbell, Andrew) (Entered: 10/09/2017)

10/09/2017

54 STIPULATION of Dismissal of Defendants Haslam and Slatery without Prejudice and Agreed Order by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Campbell, Andrew) (Entered: 10/09/2017)

10/10/2017

55 JOINT STIPULATION AND AGREED ORDER: As demonstrated by the signatures of adversary counsel below, and pursuant to Rule 41(a)(1)(A)(ii), Fed. R. Civ. P., official−capacity Defendants Haslam and Slatery are hereby dismissed without prejudice. Bill Haslam (Governor of Tennessee, in his official capacity) and Herbert Slatery, III (Attorney General and Reporter, in his official capacity) terminated. Signed by District Judge Aleta A. Trauger on 10/10/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/10/2017)

10/10/2017

56 ORDER granting 53 Motion to Set Revised Briefing Schedule. Extensions as requested. Signed by District Judge Aleta A. Trauger on 10/10/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/10/2017)

10/13/2017 57 NOTICE of Appearance by Scott C. Sutherland on behalf of Bill Haslam, David W. Purkey, Herbert Slatery, III (Sutherland, Scott) (Entered: 10/13/2017)

10/13/2017 58 NOTICE of Appearance by Katherine Dix on behalf of Bill Haslam, David W. Purkey, Herbert Slatery, III (Dix, Katherine) (Entered: 10/13/2017)

10/16/2017

TN State Bar status verified as active for Andrew B. Campbell, Scott C. Sutherland and Katherine Dix. (dt) (Entered: 10/16/2017)

10/16/2017 59 MOTION to Withdraw as Attorney by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Meyer, Michael) (Entered: 10/16/2017)

10/17/2017

60 ORDER granting 59 Motion to Withdraw as Attorney. Attorney Michael Alan Meyer terminated. Signed by District Judge Aleta A. Trauger on 10/17/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/18/2017)

11/06/2017 61 MOTION for Summary Judgment by David W. Purkey. (Campbell, Andrew) (Entered: 11/06/2017)

11/06/2017

62 STATEMENT of Undisputed Facts filed by David W. Purkey in support of 61 Motion for Summary Judgment. (Attachments: # 1 Exhibit A −− Thomas Criminal Judgment, # 2 Exhibit B −− Hixson 2013 Washington County conviction, # 3 Exhibit C −− Hixson 2015 Washington County conviction, # 4 Exhibit D −− Cortazar Declaration, # 5 Exhibit D−1 −− Notice of Revocation (Thomas), # 6 Exhibit D−2 −− Notice of Revocation (Hixson 2015), # 7 Exhibit D−3 −− Notice of Revocation (Hixson 2017), # 8 Exhibit E −− TBI Sex Offender Registry (Hixson), # 9 Exhibit F −− Hixson 2003 Sullivan County conviction)(Campbell, Andrew) Modified on 11/7/2017 (dt). (Entered: 11/06/2017)
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11/06/2017 11/06/2017

63 MOTION for Permission to Submit Brief in Excess of 25 Pages re 61 MOTION for Summary Judgment by David W. Purkey. (Attachments: # 1 Attachment Defendant Purkey's Brief in Support of Summary Judgment)(Campbell, Andrew) (Entered: 11/06/2017)
64 RESPONSE to 39 STATEMENT of Undisputed Facts filed by David W. Purkey. (Attachments: # 1 Exhibit 1 −− Rule 1340−2−5, # 2 Exhibit 2 −− Public Chapter 412)(Campbell, Andrew) Modified on 11/7/2017 (dt). (Entered: 11/06/2017)

11/06/2017 65 RESPONSE in Opposition re 37 MOTION for Summary Judgment filed by David W. Purkey. (Campbell, Andrew) (Entered: 11/06/2017)

11/06/2017 66 NOTICE of Appearance by Alexander Stuart Rieger on behalf of Bill Haslam, David W. Purkey, Herbert Slatery, III (Rieger, Alexander) (Entered: 11/06/2017)

11/06/2017 11/07/2017 11/20/2017
11/21/2017

67 RESPONSE in Opposition re 36 MOTION, 6 MOTION to Certify Class filed by Bill Haslam, David W. Purkey, Herbert Slatery, III. (Rieger, Alexander) (Entered: 11/06/2017)
TN State Bar status verified as active for Alexander Stuart Rieger. (dt) (Entered: 11/07/2017)
68 Joint MOTION for Extension of Time to File Response/Reply as to 61 MOTION for Summary Judgment , 65 Response in Opposition to Motion, 67 Response in Opposition to Motion, 62 Statement of facts,, and for Proposed Briefing Order by David Hixson, James Thomas. (Attachments: # 1 Exhibit A − Proposed Order)(White, Matthew) (Entered: 11/20/2017)
69 ORDER granting 68 Motion for Extension of Time to File Response/Reply. Signed by District Judge Aleta A. Trauger on 11/21/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/21/2017)

11/21/2017

70 ORDER: Plaintiffs' Reply to Defendant Purkey's Response (D.E. 67) to Plaintiffs' Motion for Class Certification to be filed by January 12, 2018. Plaintiffs' Responses to Defendant Purkey's Motion for Summary Judgment and Statement of Undisputed Facts (D.E. 61 and 62) to be filed by December 15, 2017. Plaintiffs' Reply to Defendant Purkey's Response (D.E. 65) to Plaintiffs' Consolidated Response to Defendant Purkey's Motion to Dismiss and Plaintiffs' Motion for Summary Judgment to be filed by December 15, 2017.The deadline for Defendant Purkey's Reply to Plaintiffs' Response to his Motion for Summary Judgment will be determined by further Order of the Court, upon appropriate motion by Defendant Purkey or joint motion by the parties. Such motion shall be filed no later than January 5, 2018. Signed by District Judge Aleta A. Trauger on 11/21/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/21/2017)

12/04/2017

71 NOTICE of Filing by David W. Purkey re 62 Statement of facts,, (Attachments: # 1 Exhibit B −− certified copy of Hixson 2013 Washington County conviction, # 2 Exhibit C −− certified copy of Hixson 2015 Washington County conviction, # 3 Exhibit F −− certified copy of Hixson 2003 Sullivan County conviction)(Campbell, Andrew) (Entered: 12/04/2017)

12/15/2017 12/15/2017 12/15/2017 12/15/2017

72 MOTION for attorney(s) Jonas Wang to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2575622) by David Hixson, James Thomas. (White, Matthew) (Entered: 12/15/2017)
73 CERTIFICATE OF GOOD STANDING of Attorney Jonas Wang from the United States District Court for the Southern of New York filed by David Hixson, James Thomas. (White, Matthew) (Entered: 12/15/2017)
74 MOTION for Leave to File Excess Pages by David Hixson, James Thomas. (Attachments: # 1 Exhibit Plaintiffs' Opposition Brief to Defendant's MSJ, # 2 Exhibit Ex 1 to Ps Opp'n Brief, Acts 2011 ch.504, # 3 Exhibit Plaintiffs' Reply Brief ISO Their MSJ)(White, Matthew) (Entered: 12/15/2017)
75 DECLARATION OF EDWARD P. KRUGMAN in Opposition to 61 MOTION for Summary Judgment filed by David Hixson and James Thomas. (White, Matthew)

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Modified Text on 12/18/2017 (dt). (Entered: 12/15/2017)

12/15/2017 76 RESPONSE to 62 STATEMENT of Undisputed Facts filed by David Hixson and James Thomas. (White, Matthew) Modified on 12/18/2017 (dt). (Entered: 12/15/2017)

12/15/2017

77 DECLARATION OF DAVID HIXSON in support of Plaintiffs' Motion for Summary Judgment and in opposition to Defendants' Motion for Summary Judgment filed by David Hixson, James Thomas. (Attachments: # 1 Exhibit Reinstatement Letter Dated 11/26/2016)(White, Matthew) Modified on 12/18/2017 (dt). (Entered: 12/15/2017)

12/18/2017

NY State Bar status verified as active for Jonas Wang. (dt) (Entered: 12/18/2017)

12/18/2017

Notice to Filer re DE 72−77: Pursuant to Local Rule 5.01, all filings shall include a Certificate of Service and it shall identify by name the person served, what was served, the method of service, and date of service. Counsel SHALL FILE a conformed Certificate of Service for this document using the Certificate event located under Other Documents. (dt) (Entered: 12/18/2017)

12/18/2017

78 ORDER granting 72 Motion for Jonas Wang to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 12/18/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 12/19/2017)

12/18/2017

79 ORDER granting 74 Motion for Leave to File Excess Pages. Signed by District Judge Aleta A. Trauger on 12/18/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 12/19/2017)

12/18/2017

81 RESPONSE in Opposition to 61 MOTION for Summary Judgment filed by David Hixson and James Thomas. (Attachments: # 1 Exhibit 1 − Acts 2011 ch.504)(dt) (Entered: 12/20/2017)

12/18/2017 82 REPLY to Response to 37 MOTION for Summary Judgment filed by David Hixson and James Thomas. (dt) (Entered: 12/20/2017)

12/19/2017

80 CERTIFICATE of Service filed by David Hixson, James Thomas re 74 MOTION for Leave to File Excess Pages filed by David Hixson, James Thomas, 77 Response in Opposition to Motion, filed by David Hixson, James Thomas, 72 MOTION for attorney(s) Jonas Wang to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2575622) filed by David Hixson, James Thomas, 76 Response in Opposition to Motion filed by David Hixson, James Thomas, 75 Response in Opposition to Motion filed by David Hixson, James Thomas, 73 Certificate of Good Standing filed by David Hixson, James Thomas. (White, Matthew) (Entered: 12/19/2017)

12/20/2017 83 ORDER granting 63 Motion for Permission to Submit Brief in Excess of 25 Pages. Signed by District Judge Aleta A. Trauger on 12/20/17. (dt) (Entered: 12/20/2017)

12/20/2017 84 MEMORANDUM in Support of 61 MOTION for Summary Judgment filed by David W. Purkey. (dt) (Entered: 12/20/2017)

12/27/2017 85 Joint MOTION Regarding Deadline to File Summary Judgment Reply by David W. Purkey. (Campbell, Andrew) (Entered: 12/27/2017)

12/28/2017

86 ORDER granting 85 Motion Regarding Deadline to File Summary Judgment Reply. Extension to 1/19/18. Signed by District Judge Aleta A. Trauger on 12/28/17. (gb) (Entered: 12/28/2017)

01/12/2018 87 REPLY to Response to Motion re 36 MOTION, 6 MOTION to Certify Class filed by David Hixson, James Thomas. (White, Matthew) (Entered: 01/12/2018)

01/19/2018 88 REPLY to Response to Motion re 61 MOTION for Summary Judgment filed by David W. Purkey. (Campbell, Andrew) (Entered: 01/19/2018)

01/19/2018 89 RESPONSE to 62 STATEMENT of Undisputed Facts filed by David W. Purkey. (Campbell, Andrew) Modified on 1/22/2018 (dt). (Entered: 01/19/2018)

01/19/2018

90 NOTICE of Filing by David W. Purkey Unreported Authorities (Attachments: # 1 Attachment 1 −− Rules of Tenn. Dept of Safety Driver Control Division, Ch. 1340−1−8, Rules of Procedure for Hearing Contested Cases, # 2 Attachment 2 −−

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Bowman v. Skyview Apartments, # 3 Attachment 3 −− Davis v. Wells Fargo, NA, # 4 Attachment 4 −− Duncan v. Cone, # 5 Attachment 5 −− Evans v. Rhodes (R&R), # 6 Attachment 6 −− Evans v. Rhodes (Order adopting R&R), # 7 Attachment 7 −− King v. Creed (2015 opinion), # 8 Attachment 8 −− King v. Creed (2016 opinion), # 9 Attachment 9 −− McDermott v. Barton, # 10 Attachment 10 −− Meyer v. Debt Recovery Solutions of Ohio, Inc., # 11 Attachment 11 −− Pickell v. Sands, # 12 Attachment 12 −− Roberts v. State, # 13 Attachment 13 −− Schroeder v. Ryan, # 14 Attachment 14 −− Sherman v. State of Tenn., # 15 Attachment 15 −− State v. Ma)(Campbell, Andrew) (Entered: 01/19/2018)

02/02/2018

91 MOTION for attorney(s) Theresa Lau to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2604067) by David Hixson, James Thomas. (Attachments: # 1 Attachment Certificate of Good Standing from SDNY)(White, Matthew) (Entered: 02/02/2018)

02/02/2018 92 ORDER granting 91 Motion for Theresa Lau to Appear Pro Hac Vice. Signed by District Judge Aleta A. Trauger on 2/2/18. (dt) (Entered: 02/02/2018)

02/02/2018

NY State Bar status verified as active for Theresa Lau. (dt) (Entered: 02/02/2018)

03/26/2018

93 MEMORANDUM Signed by District Judge Aleta A. Trauger on 3/26/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/26/2018)

03/26/2018

94 ORDER: For the reasons explained in the accompanying Memorandum, Commissioner David W. Purkey's Motion to Dismiss (Docket No. 23 ) is hereby DENIED. The Renewed Motion for Class Certification filed by James Thomas and David Hixson (Docket No. 36 ) is GRANTED. Counsel for the plaintiffs are ORDERED to designate in writing which individual or individuals seek appointment as class counsel, in accordance with Federal Rule of Civil Procedure 23(g), by close of business on April 6, 2018. The parties' respective Motions for Summary Judgment (Docket Nos. 37 & 61) are HELD IN ABEYANCE pending the completion of the supplemental stipulations and briefing ordered below. The parties are ORDERED to file supplemental stipulations and briefing. Signed by District Judge Aleta A. Trauger on 3/26/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/26/2018)

04/06/2018 95 NOTICE of Appearance by Jonathan Jacob Cole on behalf of David Hixson, James Thomas (Cole, Jonathan) (Entered: 04/06/2018)

04/06/2018 96 NOTICE by David Hixson, James Thomas of Filing Designation of Those Seeking Appointment as Class Counsel (White, Matthew) (Entered: 04/06/2018)

04/09/2018

97 JOINT TATUS REPORT and Submission in Response to Order of March 26, 2018 (ECF # 94 ) by David Hixson and James Thomas. (White, Matthew) Modified on 4/10/2018 (dt). (Entered: 04/09/2018)

04/09/2018 98 NOTICE by David W. Purkey of Filing Supplemental Statment (Campbell, Andrew) (Entered: 04/09/2018)

04/10/2018

TN State Bar status verified as active for Jonathan Jacob Cole. (dt) (Entered: 04/10/2018)

04/10/2018 99 Letter from Arthur Hirsch re: Travel v. Transporation. (dt) (Entered: 04/11/2018)

04/12/2018

100 ORDER: Within 10 days of the entry of this Order, the plaintiffs shall designate two lawyers who shall function as lead counsel for the class in this case. The court has a strong preference that one of the lawyers be with the law firm involved in this litigation on behalf of the plaintiffs. Signed by District Judge Aleta A. Trauger on 4/12/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/12/2018)

04/12/2018 101 MOTION to Withdraw as Attorney by David W. Purkey. (Dix, Katherine) (Entered: 04/12/2018)

04/12/2018 102 ORDER granting 101 Motion to Withdraw as Attorney. Attorney Katherine Dix terminated. Signed by District Judge Aleta A. Trauger on 4/12/18. (dt) (Entered: 04/12/2018)

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04/17/2018

103 ORDER: The court is in receipt of a letter from David Tulis dated April 10, 2018 with accompanying documents. It is hereby ORDERED that the Clerk shall file this letter and the accompanying documents as part of the record in this case. Signed by District Judge Aleta A. Trauger on 4/16/18. (dt) (Entered: 04/17/2018)

04/17/2018 104 Letter dated 4/10/2018 from David Tulis. (Attachments: # 1 Attachment − supporting documents)(dt) (Entered: 04/17/2018)

04/19/2018 105 MOTION to Clarify re 100 Order, by David Hixson, James Thomas. (White, Matthew) (Entered: 04/19/2018)

04/19/2018

106 ORDER: The Request for Clarification filed by the plaintiffs (Docket No 105 ) is hereby GRANTED. The court hereby appoints as class counsel the individuals and organizations/lawfirm listed in the Designation of Those Seeking Appointment as Class Counsel filed on April 6, 2018 (Docket No. 96 ). It is further ORDERED that the court appoints as lead counsel, to serve as point of contact for the court and opposing counsel, Jonathan Cole and Matthew White of the Baker Donelson firm. Signed by District Judge Aleta A. Trauger on 4/19/18. (dt) (Main Document 106 replaced on 4/19/2018) (dt). (Entered: 04/19/2018)

04/25/2018 107 SUPPLEMENTAL BRIEF filed by David Hixson, James Thomas re 97 Status Report, 94 Order. (White, Matthew) Modified on 4/27/2018 (dt). (Entered: 04/25/2018)

04/25/2018

108 NOTICE of Filing by David Hixson, James Thomas re 107 Brief (non−appeal) Declaration of Adie Tomer and Exhibits Thereto (Attachments: # 1 Attachment Declaration of Adie Tomer, # 2 Exhibit 1 − Tomer CV, # 3 Exhibit 2 − Brookings Report)(White, Matthew) (Entered: 04/25/2018)

04/27/2018

Notice to Filer re DE 107 : Pursuant to Local Rule 5.01, all filings shall include a Certificate of Service and it shall identify by name the person served, what was served, the method of service, and date of service. Counsel SHALL FILE a conformed Certificate of Service for this document using the Certificate event located under Other Documents.(dt) (Entered: 04/27/2018)

04/27/2018 109 CONFORMED CERTIFICATE of Service filed by David Hixson, James Thomas re 107 Supplemental Brief filed by David Hixson, James Thomas. (White, Matthew) Modified on 5/1/2018 (dt). (Entered: 04/27/2018)

05/08/2018

110 RESPONSE to 107 Supplemental Brief filed by David W. Purkey. (Attachments: # 1 Exhibit A −− email dated 3/28/18, # 2 Attachment 1 −− Adams v. United States, # 3 Attachment 2 −− Mata−Cuellar v. Tennessee Dept. of Safety)(Campbell, Andrew) Modified on 5/9/2018 (dt). (Entered: 05/08/2018)

05/15/2018 111 REPLY filed by David Hixson, James Thomas re 110 Response in Opposition to Motion, filed by David W. Purkey. (White, Matthew) (Entered: 05/15/2018)

06/22/2018 112 NOTICE of Appearance by Sara Ohlman on behalf of All Defendants (Ohlman, Sara) (Entered: 06/22/2018)

06/25/2018

TN State Bar status verified as active for Sara Ohlman. (dt) (Entered: 06/25/2018)

07/02/2018 113 MEMORANDUM Signed by District Judge Aleta A. Trauger on 7/2/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/02/2018)

07/02/2018

114 ORDER: For the reasons explained in the accompanying Memorandum, the Motion for Summary Judgment filed by Tennessee Department of Safety and Homeland Security ("TDSHS") Commissioner David W. Purkey ("Commissioner") (Docket No. 61 ) is hereby DENIED and the Motion for Summary Judgment filed by James Thomas and David Hixson (Docket No. 37 ) is GRANTED. Signed by District Judge Aleta A. Trauger on 7/2/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/02/2018)

07/10/2018 115 Consent MOTION for Extension of Time to File Application for Attorneys' Fees by David Hixson, James Thomas. (White, Matthew) (Entered: 07/10/2018)

07/13/2018 116 ORDER: Motion for Extension of Time to File Application for Attorneys' Fees 115 is GRANTED for extension to 7/23/2018. Signed by District Judge Aleta A. Trauger on 7/13/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN
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THE PDF AND READ THE ORDER.)(dt) (Entered: 07/13/2018)

07/23/2018 117 Second MOTION for Extension of Time to File Application for Attorneys' Fees by David Hixson, James Thomas. (Cole, Jonathan) (Entered: 07/23/2018)

07/23/2018 118 MOTION for Attorney Fees and Costs by David Hixson, James Thomas. (White, Matthew) (Entered: 07/23/2018)

07/23/2018

119 MEMORANDUM in Support of 118 MOTION for Attorney Fees and Costs filed by David Hixson, James Thomas . (Attachments: # 1 Attachment Declaration of Marc Cohan and Exhibits, # 2 Attachment Declaration of Claudia Wilner, # 3 Attachment Declaration of Edward Krugman, # 4 Attachment Declaration of Alec Karakatsanis and Exhibit, # 5 Attachment Declaration of Premal Dharia and Exhibit, # 6 Attachment Declaration of Jonas Wang and Exhibit, # 7 Attachment Declaration of Charlie Gerstein and Exhibit, # 8 Attachment Declaration of Matthew G. White and Exhibits, # 9 Attachment Declaration of Josh Spickler and Exhibits, # 10 Attachment Declaration of David Garrison, # 11 Attachment Declaration of Tricia Herzfeld)(White, Matthew) (Entered: 07/23/2018)

07/24/2018 120 ORDER denying as moot 117 Motion for Attorney Fees. Signed by District Judge Aleta A. Trauger on 7/24/18. (dt) Modified on 7/24/2018 (dt). (Entered: 07/24/2018)

07/25/2018 121 NOTICE OF APPEAL as to 113 Memorandum Opinion of the Court, 114 Order on Motion for Summary Judgment,,,,, by David W. Purkey. (Campbell, Andrew) (Entered: 07/25/2018)

07/25/2018 122 RECEIPT #34675051242 in the amount of $505.00 posted by State of Tennessee re 121 Notice of Appeal. (dt) (Entered: 07/26/2018)

07/26/2018 123 MOTION to Stay re 114 Order on Motion for Summary Judgment,,,,, by David W. Purkey. (Campbell, Andrew) (Entered: 07/26/2018)

07/26/2018 124 MEMORANDUM in Support of 123 MOTION to Stay re 114 Order on Motion for Summary Judgment,,,,, filed by David W. Purkey . (Campbell, Andrew) (Entered: 07/26/2018)

07/27/2018 126 USCA Case Number 18−5766 for 121 Notice of Appeal filed by David W. Purkey. Case Manager Briston S. Mitchell. (dt) (Entered: 07/30/2018)

07/30/2018 125 RESPONSE in Opposition re 123 MOTION to Stay re 114 Order on Motion for Summary Judgment,,,,, filed by David Hixson, James Thomas. (White, Matthew) (Entered: 07/30/2018)

07/30/2018

127 ORDER: Defendant Commissioner Purkey has filed a Motion for Partial Stay Pending Appeal (Docket No. 123 ), to which a partial response has been filed by the plaintiffs (Docket No. 125 ). The request to stay briefing and consideration of the plaintiffs' Motion for Attorney Fees (Docket No. 118 ) is GRANTED. The plaintiffs are "engaged in discussions with Defendant" concerning the request for a stay of the "third component" of this court's Order of July 2, 2018 (Docket No. 114 ). Therefore, the court will not rule on the remaining aspects of defendant Purkeys motion until those discussions have concluded. Signed by District Judge Aleta A. Trauger on 7/30/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/30/2018)

07/30/2018 128 PROPOSED ORDER re 123 Motion to Stay and 114 Order on Motion for Summary Judgment filed by David Hixson, James Thomas. (White, Matthew) Modified on 7/31/2018 to correct name of document.(ds) (Entered: 07/30/2018)

07/31/2018

129 ORDER: The motion to stay 123 is GRANTED only to the extent of staying the portion of D.E. 114 that requires Defendant to submit a Plan within 60 days. Signed by District Judge Aleta A. Trauger on 7/31/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/31/2018)

01/08/2019

130 ORDER: The Clerk shall terminate the Plaintiffs' Motion for Attorneys' Fees and Costs (Docket No. 118 ) as moot. This case is on appeal. Either the motion will be irrelevant or it will need to be supplemented following a decision on the appeal of this case. Signed by District Judge Aleta A. Trauger on 1/8/19. (dt) (Entered: 01/08/2019)

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06/17/2019 131 MOTION to Withdraw as Attorney by David Hixson, James Thomas. (Wang, Jonas) (Entered: 06/17/2019)

06/17/2019 132 ORDER granting 131 Motion to Withdraw as Attorney. Attorney Jonas Wang terminated. Signed by District Judge Aleta A. Trauger on 6/17/19. (dt) (Entered: 06/18/2019)

06/19/2019 133 MOTION to Withdraw as Attorney by David W. Purkey. (Ohlman, Sara) (Entered: 06/19/2019)

06/20/2019

134 ORDER granting 133 Motion to Withdraw as Attorney. Attorney Sara Ohlman terminated. Signed by District Judge Aleta A. Trauger on 6/20/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 06/20/2019)

08/02/2019 135 MOTION to Withdraw as Attorney Premal Dharia by David Hixson, James Thomas. (Dharia, Premal) (Entered: 08/02/2019)

08/12/2019 136 ORDER granting 135 Motion to Withdraw as Attorney. Attorney Premal Dharia terminated. Signed by District Judge Aleta A. Trauger on 8/12/19. (dt) (Entered: 08/12/2019)

09/12/2019

137 INFORMATION COPY from 6CCA: Because the issues raised in this appeal and the underlying case have become moot, we VACATE the judgment of the district court and REMAND with instructions to dismiss the underlying litigation as moot. (MANDATE TO ISSUE)(dt) (Entered: 09/13/2019)

09/30/2019

138 ORDER: Pursuant to instruction from the Sixth Circuit Court of Appeals (Docket No. 137 ), it is hereby ORDERED that all claims in this case are hereby DISMISSED with prejudice as moot. Signed by District Judge Aleta A. Trauger on 9/30/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 09/30/2019)

10/03/2019 139 Consent MOTION for Extension of Time to File Application for Attorneys' Fees by David Hixson, James Thomas. (White, Matthew) (Entered: 10/03/2019)

10/04/2019 140 ORDER: Motion for Extension of Time to File Application for Attorneys' Fees 139 is GRANTED for extension to 10/30/2019. Signed by District Judge Aleta A. Trauger on 10/4/2019. (dt) (Entered: 10/04/2019)

10/04/2019 141 MANDATE of USCA as to 121 Notice of Appeal filed by David W. Purkey: Pursuant to the court's disposition that was filed 09/12/2019 the mandate for this case hereby issues today. (dt) (Entered: 10/04/2019)

10/30/2019

142 MOTION for Attorney Fees and Costs by David Hixson, James Thomas. (Attachments: # 1 Attachment Declaration of Marc Cohan, # 2 Attachment Declaration of Claudia Wilner, # 3 Attachment Declaration of Edward Krugman, # 4 Attachment Declaration of Tara Mikkilineni, # 5 Attachment Supplemental Declaration of Premal Dharia, # 6 Attachment Supplemental Declaration of Jonas Wang, # 7 Attachment Declaration of David Garrison, # 8 Attachment Declaration of Tricia Herzfeld)(White, Matthew) (Entered: 10/30/2019)

10/30/2019 143 MEMORANDUM in Support of 142 MOTION for Attorney Fees and Costs filed by David Hixson, James Thomas . (Attachments: # 1 Exhibit Rodriguez Amended Order, # 2 Exhibit Tanco Fee Application)(White, Matthew) (Entered: 10/30/2019)

10/31/2019

144 NOTICE of Filing by David Hixson, James Thomas re 142 MOTION for Attorney Fees and Costs Amended Declaration of Tara Mikkilineni to Add Exhibit 2 (Attachments: # 1 Attachment Declaration of Tara Mikkilineni Amended to Add Exhibit 2)(White, Matthew) (Entered: 10/31/2019)

11/04/2019

145 NOTICE of Filing by David Hixson, James Thomas re 142 MOTION for Attorney Fees and Costs Amended Declarations with Original Signatures (Attachments: # 1 Attachment Declaration of David Garrison with Original Signature, # 2 Attachment Declaration of Tricia Herzfeld with Original Signature)(White, Matthew) (Entered: 11/04/2019)

11/07/2019 146 Joint MOTION for Extension of Time to File Response/Reply to Motion for Attorneys' Fees and Costs by David W. Purkey. (Campbell, Andrew) (Entered: 11/07/2019)
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11/08/2019 12/16/2019
01/10/2020 01/16/2020 01/16/2020 01/16/2020 01/22/2020

147 ORDER granting 146 Motion for Extension of Time to File Response to 142 MOTION for Attorney Fees. Replies due by 1/16/2020. Signed by District Judge Aleta A. Trauger on 11/8/2019. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/08/2019)
148 RESPONSE in Opposition re 142 MOTION for Attorney Fees and Costs filed by Jeff Long as successor to filed by David W. Purkey. (Attachments: # 1 Exhibit A −− Plaintiffs' Suggestion of Impending Mootness, # 2 Exhibit B −− Supplemental Briefing Letter, # 3 Exhibit C −− Commissioner's Supplemental Appellant Brief, # 4 Exhibit D −− Plaintiffs' Supplemental Appellate Brief, # 5 Exhibit E −− Commissioner's Supplemental Appellate Reply Brief, # 6 Exhibit F −− Plaintiffs' Appellate Motion to Intervene, # 7 Exhibit G −− Spreadsheet of Requested Fees)(Campbell, Andrew) (Entered: 12/16/2019)
149 NOTICE of Filing by David Hixson, James Thomas re 142 MOTION for Attorney Fees and Costs Notice of Re−Filing Corrected Cohan Declaration (Attachments: # 1 Attachment Cohen Declaration, # 2 Exhibit A − Wilner Time Records, # 3 Exhibit B − Krugman Time Records, # 4 Exhibit C − Cohan Time Records (CORRECTED), # 5 Exhibit D − Tasheff Time Records, # 6 Exhibit E − Fajana Time Records, # 7 Exhibit F − Lau Time Records, # 8 Exhibit G − Resumes, # 9 Exhibit H − Expenses)(White, Matthew) (Entered: 01/10/2020)
150 MOTION for Leave to File Excess Pages in Support of Plaintiffs' Motion for Attorneys' Fees and Costs by David Hixson, James Thomas. (Attachments: # 1 Attachment Reply Memorandum in Support of Plaintiffs' Motion for Attorneys' Fees and Costs, # 2 Exhibit 1 − Karakatsanis Timesheet Fee Petition Reply, # 3 Exhibit 2 − Mikkilineni Timesheet Fee Petition Reply, # 4 Exhibit 3 − Gerstein Timesheet Fee Petition Reply, # 5 Exhibit 4 − Wang Timesheet Fee Petition Reply, # 6 Exhibit 5 − NCLEJ Fee Petition Time)(White, Matthew) (Entered: 01/16/2020)
151 ORDER granting 150 Motion for Leave to File Excess Pages. Signed by District Judge Aleta A. Trauger on 1/16/2020. (gb) (Entered: 01/16/2020)
152 REPLY to Response to Motion re 142 MOTION for Attorney Fees and Costs Reply Memorandum in Support of Plaintiffs' Motion for Attorneys' Fees filed by David Hixson, James Thomas. (Attachments: # 1 Exhibit 1 − Karakatsanis Timesheet Fee Petition Reply, # 2 Exhibit 2 − Mikkilineni Timesheet Fee Petition Reply, # 3 Exhibit 3 − Gerstein Fee Petition Reply, # 4 Exhibit 4 − Wang Fee Petition Reply, # 5 Exhibit 5 − NCLEJ Fee Petition Reply Brief Time)(White, Matthew) (Entered: 01/16/2020)
153 OBJECTIONS TO PLAINTIFFS' NOTICE OF FILING (DE 149) AND SUPPLEMENTAL EXHIBITS (DE 152−1 through 152−4) filed by David W. Purkey re 152 Reply to Response to Motion,, 149 Notice (Other),,. (Attachments: # 1 Attachment Color Coded Objections to Cohan timesheet)(Campbell, Andrew) (Entered: 01/22/2020)

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
-----------------------------------------------------X
JAMES THOMAS and DAVID HIXSON, for themselves and those similarly situated,
Plaintiffs, COMPLAINT – CLASS ACTION
v.
BILL HASLAM, Governor of Tennessee, in his official capacity; DAVID W. PURKEY, Commissioner for the Department of Safety and Homeland Security, in his official capacity; and HERBERT SLATERY III, Attorney General and Reporter, in his official capacity,
Defendants. -----------------------------------------------------X
PRELIMINARY STATEMENT
1. Whenever people are convicted of crimes in the state and local courts of
Tennessee—and sometimes even when they are not convicted—they are assessed certain
litigation taxes, court costs, and fines (“Court Debt”). If they cannot pay their Court Debt within
one year, their driver’s licenses are revoked by the State of Tennessee, without notice and
without any inquiry into whether they are able to pay the Court Debt.
2. These revocations, mandated by Tennessee law, dramatically impair the ability of
impoverished Tennessee residents to meet the basic necessities of life. Without their driver’s
licenses, Plaintiffs and class members have difficulty grocery shopping, going to the doctor,
attending church, caring for and spending time with family members, taking their children to
school, and participating in other fundamental aspects of daily life. The revocations also deprive
1
Case 3:17-cv-00005 Document 1 Filed 01/04/17 Page 1 of 19 PageID #: 1

indigent people of a key tool for finding and keeping a job. Without work, people cannot earn enough money to pay the Court Debt. The statutory scheme traps only the poorest court debtors in a cycle of debt, poverty, and alienation from their community.
3. The Tennessee law at issue, Tenn. Code Ann. § 40-24-105(b) (“the Statute”), requires that people pay their Court Debt within one year of imposition or lose their driver’s licenses—even if they are indigent and unable to pay through no fault of their own. Because of their financial circumstances, Plaintiffs and class members could not or will not be able to pay their Court Debt, and thus their licenses have been or will be automatically revoked without consideration of their ability to pay.
4. Once their licenses are revoked, Plaintiffs and class members incur additional costs in the form of substantial reinstatement fees that Defendants require them to pay in order to regain their right to drive. Plaintiffs and class members cannot afford to pay the reinstatement fees and thus are unable to regain licenses.
5. Since 2012, when the Statute went into effect, the Tennessee Department of Safety has automatically revoked more than 146,000 driver’s licenses for failure to pay Court Debt.
6. The Statute violates the Due Process and Equal Protection Clauses because it is fundamentally unfair to deprive a person of the right to drive for failure to pay a Court Debt: (1) without requiring that the State first determine whether the person has the ability to pay the Court Debt; and (2) without providing a notice and an opportunity to be heard in connection with the revocation.
2 Case 3:17-cv-00005 Document 1 Filed 01/04/17 Page 2 of 19 PageID #: 2

7. The Statute violates the Equal Protection Clause in another way: it subjects people owing Court Debts to unduly harsh and discriminatory treatment as compared to other debtors, as prohibited by the U.S. Supreme Court in James v. Strange, 407 U.S. 128 (1972).
8. Accordingly, Plaintiffs and class members seek a declaratory judgment that the Statute is unconstitutional. They also seek an injunction preventing Defendants from enforcing the statute and directing Defendants to reinstate all driver’s licenses automatically revoked pursuant to the Statute.
JURISDICTION AND VENUE 9. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. §§ 22012202, and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and § 1343. 10. Venue in this district is proper under 28 U.S.C. § 1391(b) because one or more Plaintiffs reside in this district, Defendants reside in this district, and a substantial part of the events or omissions giving rise to the claim occurred in this district.
PARTIES 11. Plaintiff James Thomas resides in Nashville, Tennessee. 12. Plaintiff David Hixson resides in Nashville, Tennessee. 13. Defendant Bill Haslam is the Governor of the State of Tennessee. He is sued in his official capacity. 14. Defendant David W. Purkey is the Commissioner for the Tennessee Department of Safety and Homeland Security. He is sued in his official capacity. 15. Defendant Herbert Slatery III is the Attorney General and Reporter for the State of Tennessee. He is sued in his official capacity.
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FACTS COMMON TO THE CLASS Assessment of Court Debt
16. In Tennessee, a person who is convicted of a crime is ordered to pay Court Debt. 17. Fines are considered part of the criminal penalty and are not assessed in every case. 18. Litigation taxes and court costs, however, are not part of the penalty and are assessed after every misdemeanor and felony conviction. 19. Some people incur Court Debt without even being convicted of a crime. This occurs when they are charged with a crime, but the prosecutor, as a matter of discretion, offers to dismiss the case “on costs.” 20. Examples of court costs routinely imposed include: filing fees, arrest fees, court security fees, fees for issuing subpoenas, fees for continuances, indigent defense fees, jail fees, witness fees, travel fees, and diagnostic fees. Some counties also include probation fees. 21. Depending on factors such as the length of pretrial detention and the complexity of the case, litigation taxes and court costs range from a few hundred dollars to more than ten thousand dollars. Fines likewise can range from a few hundred dollars to thousands of dollars. 22. According to the Tennessee Administrative Office of the Courts, approximately 75% of criminal defendants in Tennessee have been found indigent. Revocation of Driver’s Licenses under the Statute 23. Prior to 2011, Tennessee collected Court Debt in the same manner as all other civil judgments. Court debtors had the same protections and exemptions as all other civil judgment debtors. No person could be imprisoned for failure to pay litigation taxes and court costs; no person could be imprisoned for failure to pay fines unless the court first found that the
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person actually had the ability to pay those fines; and no one lost his or her driver’s license for failure to pay Court Debt. See generally Attorney General Opinion No. 06-135, available at https://www.tn.gov/assets/entities/attorneygeneral/opinions/op06-135.pdf.
24. In 2011, however, the Tennessee legislature enacted the Statute, which provides that:
A license issued under title 55 for any operator or chauffeur shall be revoked by the commissioner of safety if the licensee has not paid all litigation taxes, court costs, and fines assessed as a result of disposition of any offense under the criminal laws of this state within one (1) year of the date of disposition of the offense. The license shall remain revoked until such time as the person whose license has been revoked provides proof to the commissioner of safety that all litigation taxes, court costs, and fines have been paid. Tenn. Code Ann. § 40-24-105(b)(1). 25. Felony cases are adjudicated in each county’s circuit criminal court and misdemeanors in each county’s general sessions criminal court. 26. The clerk of the criminal court having jurisdiction over the offense (“Court Clerk”) is responsible for tracking and collecting Court Debt. 27. Under the Statute, the Court Clerk “shall” notify the State Commissioner of Safety when a person has any Court Debt that remains unpaid after one year from the date of disposition of the offense. Tenn. Code Ann. § 40-24-105(b)(2). 28. Upon receiving notification from the Court Clerk that a person has outstanding Court Debt, the Commissioner of Safety “shall” revoke that person’s license. Tenn. Code Ann § 40-24-105(b)(1). 29. The license “shall” remain revoked until such time as the person provides proof to the Commissioner of Safety that he or she has paid all outstanding Court Debt. Id.
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30. The Commissioner also “revokes” licenses before people even have them. If such a person later applies for a license, the Commissioner may not issue a license until that person has paid all outstanding Court Debt and a reinstatement fee. Tenn. Code Ann. § 55-50-303(a)(2).
31. The Statute does not require the Court Clerk or the Commissioner of Safety to send pre-revocation notices to the people whose licenses will be revoked for failure to pay their Court Debt. As a result, they receive no notice stating that their license will be revoked, the basis for the revocation, the date of the revocation, and how to challenge the revocation, including by raising the license holder’s inability to pay by reason of poverty.
32. The Statute does not provide for a hearing at which a person may challenge the revocations on the basis that he or she is unable to pay the Court Debt.
33. The Statute requires automatic and mandatory revocation without consideration of debtors’ ability to pay Court Debt and does not permit the Commissioner of Safety to consider whether people subject to license revocation have the ability to pay their Court Debt before revoking their driver’s licenses. Hardship Provisions
34. The Statute contains very limited “hardship” provisions that do not prevent revocation for people who cannot afford to pay their Court debt. And the Statute does not require Defendants to provide notice of the limited hardship provisions prior to or even after the license is revoked.
35. The statute allows people to avoid revocation of their driver’s licenses by entering into and maintaining payment plans with the court. Tenn. Code Ann. § 40-24-105(b)(4).
36. However, the statute does not require that Court Clerks offer payment plans that are affordable to indigent court debtors.
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37. The Statute contains no guidelines to ensure proper notice or any kind of hearing. As a result, practices prevail across the state, including Clerks requiring minimum payments to qualify for setting up a payment plan or never informing people of a payment plan option.
38. In addition, if someone is too poor to make any payment at all, he or she cannot enter into a payment plan.
39. For people who cannot pay, the statute provides for the right to apply to the court for a one-time, six-month stay of revocation based on “extreme hardship.” Tenn. Code Ann. § 40-25-104(b)(3).
40. In order to grant this six-month stay, the court must find that no other transportation is reasonably available to the person. Further, “[g]rounds for finding of extreme hardship are limited to travel necessary for: (i) employment; or (2) serious illness of the person or an immediate family member.” Id.
41. The stay cannot be extended past six months, and it therefore does not provide relief to people who cannot work because of a disability, because of childcare responsibilities, or because they face long-term unemployment or underemployment for reasons outside of their control.
42. The statute does not specify any means for notifying people that the payment plans and hardship stays are available. Reinstatement of Driver’s Licenses
43. In Tennessee, once a driver’s license is revoked, it must be reinstated in order for the license-holder to regain legal driving privileges.
44. Reinstatement requires paying a fee, which can amount to hundreds of dollars or more.
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45. The Tennessee Department of Safety offers payment plans for people who owe more than $200 in reinstatement fees. However, the payment plans are themselves out of reach for indigent Tennesseans. The payment plans require a down payment of $200 and a processing fee of $25. Payments must be made in the amount of at least $300 every quarter, and the entire amount must be paid within two years. If a debtor defaults on a payment plan for any reason— including unexpected financial hardship—she loses her license and can never enter into another payment plan again. See generally Tenn. Comp. R. & Regs. 1340-2-5.
46. Only after a person pays the reinstatement fee may he or she apply for a new driver’s license, which requires paying a separate application fee.
47. For indigent Tennesseans, reinstatement fees are yet another barrier to regaining legal driving privileges. Devastating Consequences of the Statute
48. From July 1, 2012, to June 1, 2016, the Tennessee Department of Safety revoked 146,211 driver’s licenses from people who did not pay their Court Debt.
49. Only 10,750 people (7%) whose licenses were revoked for non-payment of Court Debt pursuant to the Statute have been able to get their licenses reinstated. In other words, 93% of people whose licenses were revoked since June 1, 2012, have not been able to get their licenses back.
50. People incarcerated for more than one year almost certainly cannot pay Court Debt within one year because they cannot enter into and maintain payment plans while they are imprisoned. The Statute does not provide a stay for the period of incarceration.
51. When former prisoners return to society from incarceration, the inability to drive creates a significant barrier to regaining employment, reestablishing connections to family and
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friends, and being able to live a normal social life. It also hinders their ability to pay various additional fees imposed by the State of Tennessee as a condition of their release, such as significant parole fees, thereby threatening them with return to prison.
52. In Fiscal Year 2015-2016, the State of Tennessee released 13,987 people from jail or prison. Among these people the average time served was 4.57 years. Thousands of these people would have had their driver’s licenses automatically revoked under the Statute prior to their release.
53. Approximately 75% of criminal defendants in Tennessee qualify for appointed counsel because of their indigence.
54. People with criminal records are disproportionately poor. Sixty percent of formerly incarcerated men are unemployed one year after their release.
55. Formerly incarcerated men earn approximately 11% less in hourly wages, 40% less per year, and are unemployed nine weeks longer than those who have not served time. Even people with minor criminal records who have never been incarcerated face major barriers to employment.
56. African Americans have been particularly hard hit by driver’s license revocations. Although they make up only 16% of Tennessee’s population, African Americans comprise 36% of people with revoked licenses.
57. Without a driver’s license, it is extraordinarily difficult to find employment. A driver’s license is required for many professions, even those that are not directly related to driving.
58. For example, the following professions often require a driver’s license as a condition of employment: automotive technician, cable installation technician, caregiver,
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construction worker, delivery driver, housecleaner, HVAC technician, landscaping crew member, maintenance worker, plumber and plumber’s helper, pressure washer, truck driver, truck washer, unarmed security officer, valet parking attendant, and warehouse worker.
59. Even for jobs that do not require a valid drivers’ license, it is a reality of everyday life, especially in many areas across Tennessee without significant public transportation, that getting to and from a work requires driving a car. Public transportation is unreliable or lacking entirely in many parts of Tennessee and people often have no way to get to work without driving.
60. The law thus creates a vicious cycle: people do not have a driver’s license because they cannot pay their Court Debt; they cannot pay their Court Debt because they do not have a job; and they cannot get a job because they do not have a driver’s license.
61. Even in areas with public transportation services, those services do not meaningfully reach significant portions of the impoverished population. According to a Brookings Institution analysis, in Memphis, Nashville, and Knoxville, approximately 75% of jobs are not reasonably accessible by public transportation. And in Nashville, Knoxville and Chattanooga, more than two thirds of working-age residents lack access to public transportation.
62. Many indigent people whose licenses have been revoked still need to drive in order to get to work, school, or medical appointments.
63. Driving on a revoked license is a crime that can result in imprisonment. For the first offense, driving on a suspended or revoked license is a Class B Misdemeanor, punishable by up to six months in jail and a fine of up to $500, or both. Tenn. Code §§ 40-35-111(e)(2); 55-50504(a)(1). For second and subsequent offenses, driving on a suspended or revoked license is a Class A Misdemeanor, punishable by up to 11 months and 29 days in jail, a fine of up to $2,500, or both. Tenn. Code §§ 40-35-111(e)(2); 55-50-504(a)(2).
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64. The subsequent charges generate their own fines and fees, making it less likely that these individuals will ever be able to reinstate their driver’s licenses. People even serve jail time for driving on revoked licenses to which they never would have been subject had the State considered their ability to pay Court Debt prior to revoking their driver’s licenses. This happens thousands of times every year in Tennessee.
65. The Statute therefore presents impoverished people with an impossible choice of driving illegally or failing to meet the basic necessities of life for themselves and their families. For many, it removes for them almost entirely the ability to live a healthy, flourishing life.
66. Local courthouses throughout the State of Tennessee have entire dockets devoted to processing people arrested and charged with driving on suspended or revoked licenses. For example, in Shelby County, many of the daily dockets in General Sessions courts are comprised of driving cases, including a large number related to driving on suspended or revoked licenses. Many of these cases involve people who are too poor to pay the Court Debt owed.
67. Dozens of counties in Tennessee contract with for-profit “user funded” private probation companies. Others run their own “user funded” probation systems. As the system typically functions, people who can pay their Court Debt are placed on unsupervised probation. Those who cannot pay immediately, however, are placed on supervised probation until their Court Debt is paid. People on supervised probation must pay additional fees of up to $45 per month, plus $20 fees any time the for-profit probation officer decides to require a drug test. The for-profit probation officers, as a matter of policy and state law, take their own fees first out of any money that court debtors are able to pay. As a consequence, the amount of Court Debt that people must pay to avoid revocation increases above the amount initially set.
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68. Thus, a Court Debtor can be placed and kept on probation because of her inability to pay $300 in Court Debt. At the end of a year, she could have paid $500 toward her Court Debt, but still owe more than the original $300 because all of the money paid would have gone to “user funded” probation fees. For thousands of Tennessee’s poorest people, this represents an endless cycle of poverty, debt, and jailing that makes it impossible to regain a driver’s license because the Statute does not ensure any forum to consider any of the barriers to payment that are beyond their control.
69. Non-indigent people with criminal convictions do not suffer revocation of their driver’s licenses under the Statute because they have the financial ability to pay Court Debt.
70. Civil judgment debtors are not subject to the revocation of their driver’s licenses if they are too poor to pay. Private civil judgment debtors may not have their driver’s licenses revoked at all for non-payment. Neither may people who owe other kinds of civil debt to the state, such as income taxes or welfare overpayments. People can lose their licenses for failure to pay court-ordered child support, but only after a court has determined that the person does in fact have the ability to pay and that the non-payment is willful, and only after the state has provided pre-revocation notice and an opportunity to be heard. It is only in the context of the Court Debt collection scheme enshrined in the Statute that all of the basic procedural and substantive protections applied in every other area of law have been removed.
INDIVIDUAL PLAINTIFF FACTS James Thomas
71. Plaintiff James Thomas is a 48-year-old Veteran of the U.S. armed forces. He resides in Nashville, Tennessee. He has multiple serious disabilities and relies on Supplemental
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Security Income (SSI) and Supplemental Nutrition Assistance Program (SNAP) for his only income.
72. In October 2016, Mr. Thomas visited the Tennessee Department of Motor Vehicles to apply for a driver’s license. The DMV refused to issue him a license because Defendants had already revoked it for failure to pay Court Debt.
73. Mr. Thomas needs a driver’s license to get to his many medical appointments. Because of the severity of his medical conditions, Mr. Thomas needs to see his doctors regularly.
74. Mr. Thomas has been taking the bus to his medical appointments, but the bus ride back and forth can take hours and is often painful because of his disabilities.
75. Mr. Thomas’s Court Debt results from a 2013 conviction in Davidson County. At the time, Mr. Thomas was homeless and had no income other than SNAP benefits, which can be used only to purchase food. On a rainy night in September, he was taking shelter under a bridge when he was arrested for criminal trespass.
76. On October 14, 2013, Mr. Thomas appeared in court, represented himself pro se, and was found guilty. He was given a thirty-day suspended sentence and assessed court costs. He was not assessed a fine.
77. That same day, Mr. Thomas went to the Clerk’s office and advised the Clerk that he could not pay because he was homeless and had no money.
78. Mr. Thomas never heard anything further about his outstanding Court Debt until October 2016, when he was denied a Tennessee driver’s license.
79. Neither the County Court Clerk nor the Tennessee Department of Safety provided Mr. Thomas with written notice of the revocation of his driver’s license.
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80. Because the revocation process is automatic, neither the Court Clerk nor the Tennessee Department of Safety considered Mr. Thomas’s ability to pay the Court Debt before revoking his license.
81. Mr. Thomas currently gets by on very limited, subsistence income for people who are totally and permanently disabled. He cannot afford to pay the $289.70 in Court Debt, the $65 reinstatement fee, and the additional application fee necessary to regain his driving privileges. He also is not eligible for the hardship stay. David Hixson
82. Plaintiff David Hixson is 50 years old and resides in a homeless shelter in Nashville, Tennessee.
83. In 2014, Defendants revoked Mr. Hixson’s license for failure to pay Court Debt resulting from a criminal conviction in Washington County. At the time of the revocation, Mr. Hixson was incarcerated and unable to pay.
84. Mr. Hixson is struggling financially to meet the basic necessities of life. He works on average 35-hours a week as a vehicle emissions inspector, but he barely makes enough to scrape by and does not have any extra money to pay his Court Debt.
85. The lack of a driver’s license is preventing Mr. Hixson from accessing medical care. He needs hernia surgery, but he has not scheduled the surgery because he does not know how he is going to be able to get himself home from the hospital, and to take care of basic necessities of life during his recovery, if he cannot drive.
86. If Mr. Hixson had a valid driver’s license, he could increase his income significantly by seeking work as a motorcycle mechanic. Motorcycle mechanics earn more than emissions inspectors. However, a valid driver’s license is a mandatory requirement for that job.
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87. If Mr. Hixson had a valid driver’s license, he would have a better chance of moving out of the homeless shelter where he currently resides. He could broaden his housing search to areas with cheaper rents that are not well-served by public transportation. Mr. Hixson owns a car, which is fully paid for, and which he could drive if he had a license.
88. Neither the County Court Clerk nor the Tennessee Department of Safety provided Mr. Hixson with written notice of the revocation of his driver’s license.
89. Because the revocation process is automatic, neither the Court Clerk nor the Tennessee Department of Safety considered Mr. Hixson’s ability to pay the Court Debt before revoking his license.
90. Mr. Hixson currently owes $2,583.80 in Court Debt plus a reinstatement fee of $140 and the cost of applying for a new license. According to the Washington County Clerk, Mr. Hixson needs to pay the entire $2,583.80 before he will be eligible for reinstatement of his license.
91. Mr. Hixson cannot afford to pay $2,583.80, or any amount. He also is not eligible for the hardship stay.
92. Mr. Hixson is trapped in a vicious cycle. His license has been automatically revoked for failure to pay Court Debt while he was incarcerated. He cannot pay his Court Debt because he does not earn enough money. And he cannot obtain a better job because he does not have a driver’s license.
CLASS ACTION ALLEGATIONS 93. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(b)(2) on behalf of a class defined as: All persons whose Tennessee driver’s licenses have been or will be revoked pursuant to the Statute and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances.
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94. This class is so numerous that joinder of all members is impracticable. More than
140,000 people have had their driver’s licenses revoked pursuant to the Statute, most of whom
were too poor to pay their Court Debt. Class members are geographically disbursed throughout
the State of Tennessee.
95. There are numerous questions of fact and law common to the class, including:
a. Whether the Statute is fundamentally unfair because it deprives Plaintiffs of the right to drive solely because of their poverty.
b. Whether the Statute violates the Due Process Clause because it does not afford Plaintiffs and class members notice and an opportunity to be heard in connection with the revocation of their driver’s licenses.
c. Whether the Statute violates the Due Process and Equal Protection Clauses because it mandates the automatic revocation of driver’s licenses from Plaintiffs and class members without considering whether they have the ability to pay.
d. Whether the Statute violates the Equal Protection Clause because it treats people who have unpaid Court Debt unduly harshly by mandating the revocation of their driver’s licenses without consideration of their ability to pay—a consequence not possible for other debtors.
96. The individual plaintiffs’ claims are typical of the claims of the class in that all of
the named plaintiffs have had their driver’s licenses revoked for failure to pay Court Debt, and
all the named plaintiffs could not pay their Court Debt because of their indigence.
97. Declaratory and injunctive relief is appropriate with respect to the class as a
whole because defendants have acted on grounds applicable to the class.
98. The named plaintiffs and the proposed class are represented by Baker Donelson,
the National Center for Law and Economic Justice, Civil Rights Corps, and Just City. Plaintiffs’
attorneys are experienced in class action litigation and will adequately represent the class.
99. Defendants have acted 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.
16
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FIRST CAUSE OF ACTION Violation of Due Process and Equal Protection – Fundamental Fairness 100. The Statute’s mandatory revocation of people’s driver’s licenses because they are too poor to pay Court Debt without any inquiry into their ability to pay violates the right to fundamental fairness guaranteed by the Fourteenth Amendment to the United States Constitution.
SECOND CAUSE OF ACTION Violation of Due Process – Notice and Opportunity to be Heard 101. The Statute’s mandatory revocation of people’s driver’s licenses without providing them notice and an opportunity to show that they are unable to pay the Court Debt violates the right to procedural fairness guaranteed by the Fourteenth Amendment to the United States Constitution.
THIRD CAUSE OF ACTION Violation of Equal Protection Clause 102. The mandatory revocation of driver’s licenses from indigent Court Debtors, but not from other debtors, violates the right to equal protection under law guaranteed by the Fourteenth Amendment to the United States Constitution.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs and class members request that the Court enter a judgment in favor of plaintiffs and the class they represent as follows:
a. Certify this case as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2); b. Declare that the Statute violates the Due Process and Equal Protection Clauses
of the Fourteenth Amendment to the United States Constitution; c. Enjoin Defendants from revoking driver’s licenses pursuant to the Statute and
enjoin Defendants to (i) reinstate all driver’s licenses that have been revoked pursuant to the Statute; (ii) waive all reinstatement fees for people whose driver’s licenses were revoked pursuant to the Statute; (iii) notify all persons
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whose licenses were revoked of their reinstatement; (iv) and provide an accounting of all reinstatements made;
d. Award litigation costs and reasonable attorney’s fees, as provided by 42 U.S.C. § 1988; and,
e. Order such other and further relief as the Court deems just and proper.

Dated: January 4, 2017 Nashville, TN

Respectfully submitted,
/s/ Matthew G. White ____________________________________ Lori H. Patterson (TN #19848) Matthew G. White (TN #30857) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Bank Building 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 901-577-8182 lpatterson@bakerdonelson.com mwhite@bakerdonelson.com
/s/ Claudia Wilner ____________________________________ Claudia Wilner (NY #4264156)* Petra T. Tasheff (NY #2593325)* Francisca D. Fajana (MA #564301)* NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE 275 Seventh Avenue, Suite 1506 New York, NY 10001 212-633-6967 wilner@nclej.org tasheff@nclej.org fajana@nclej.org
/s/ Charles Gerstein ____________________________________ Charles Gerstein (DC #1033346)* CIVIL RIGHTS CORPS 910 17th Street NW, Suite 500

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Washington, DC 20002 202-670-4809 charlie@civilrightscorps.org /s/ Josh Spickler ____________________________________ Josh Spickler TN (TN #21019)* JUST CITY 902 South Cooper Street Memphis, TN 38104 901-206-2226 josh@justcity.org * Pro Hac Vice Motion Forthcoming
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES THOMAS and DAVID HIXSON, )

)

Plaintiffs,

)

)

v.

)

)

BILL HASLAM, Governor of Tennessee, )

in his official capacity; DAVID W.

)

PURKEY, Commissioner for the

)

Department of Safety and Homeland

)

Security, in his official capacity; and

)

HERBERY SLATERY, III, Attorney

)

General and Reporter, in his official

)

capacity,

)

)

Defendants.

)

Case No. 3:17-cv-00005 Judge Aleta A. Trauger

MEMORANDUM

Pending before the court are a Motion to Dismiss (Docket No. 23) and Motion for

Summary Judgment (Docket No. 61) filed by the sole remaining defendant in this matter, David

W. Purkey, the Commissioner of the Tennessee Department of Safety and Homeland Security

(“TDSHS”), as well as a Renewed Motion for Class Certification (Docket No. 36) and a Motion

for Summary Judgment (Docket No. 37) filed by the plaintiffs, James Thomas and David

Hixson. For the reasons set forth herein, the Motion to Dismiss will be denied and the Motion for

Class Certification will be granted. The Motions for Summary Judgment will be held in

abeyance pending supplemental briefing, as directed in the accompanying order.

I. BACKGROUND AND PROCEDURAL HISTORY

Thomas and Hixson are among the thousands of Tennesseans who owe fines, costs, or

litigation taxes related to their passage through the state’s criminal justice system. (See Docket

No. 40 ¶ 43.) By statute, TDSHS revokes the driver’s license of any person who, like Thomas

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and Hixson, has failed to pay those fines, costs, or litigation taxes for a year or more, unless that person is granted a form of discretionary relief by a court. See Tenn. Code Ann. § 40-24-105(b). Thomas and Hixson sue on behalf of themselves and a not fully known number of similarly situated Tennesseans who, they argue, have had their right to drive taken away solely based on the fact that they are indigent and therefore cannot pay the fines, costs, and litigation taxes imposed on them. A. “Court Debt”
Thomas and Hixson characterize this case as about “court debt,” a somewhat opaque term that does not itself appear in any of the statutes at issue. Although Purkey takes particular issue with the term, the specific terminology that one uses to discuss the issue is of fairly little importance. A person who passes through the criminal justice system may incur a number of different payment obligations, assessed in different amounts for different reasons, and “court debt” is merely a shorthand for the particular payment obligations at issue here. For the purposes of this opinion, “court debt” will refer to fines, costs, and litigation taxes assessed against a defendant who either (1) pleads guilty to a misdemeanor or felony, (2) is convicted of a misdemeanor or felony following trial, or (3) agrees to incur liability for fines, costs and/or litigation taxes based on an agreement with a prosecutor for the charges brought against the defendant to be dismissed “on costs.” (See Docket No. 64 ¶ 9.)
1. Fines A person convicted of a felony or misdemeanor in Tennessee may be sentenced to “[p]ayment of a fine either alone or in addition to any other sentence authorized by” the penal laws of the state. Tenn. Code Ann. § 40-35-104(c)(1). “[T]he defendant’s ability to pay the fine is a factor in the establishment of the fine,” but “it is not a controlling factor.” State v. Butler,
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108 S.W.3d 845, 854 (Tenn. 2003) (citing Tenn. Code Ann. § 40-35-207(a)(7)). The court imposing a fine is permitted to choose from a number of options regarding the timeline for payment:
When any court of this state . . . imposes a fine upon an individual, the court may direct as follows: (1) That the defendant pay the entire amount at the time sentence is
pronounced; (2) That the defendant pay the entire amount at some later date; (3) That the defendant pay the fine in specified portions or installments at
designated periodic intervals and that the portions be remitted to a designated official, who shall report to the court in the event of any failure to comply with the order; or (4) Where the defendant is sentenced to a period of probation as well as a fine, that payment of the fine be a condition of the sentence. Tenn. Code Ann. § 40-24-101(a). A court that imposes a fine retains jurisdiction and is empowered to release the fine, in whole or in part, “for good cause.” Tenn. Code Ann. § 40-24102; see also Tenn. Code Ann. § 40-24-104(a) (permitting court to waive all or portion of fine or revise payment schedule based on defendant’s inability to pay). Purkey admits that, depending on the case, fines “can range from $50 to multiple thousands of dollars.” (Docket No. 64 ¶ 12; see also Docket No. 40 ¶ 11 (stipulating same).) 2. Court Costs Tennessee requires that, generally speaking, “[a] defendant convicted of a criminal offense shall pay all the costs that have accrued in the cause.” Tenn. Code Ann. § 40-25-123(a). “Costs” are defined to include “all costs accruing under existing laws on behalf of the state or county, as the case may be, for the faithful prosecution and safekeeping of the defendant, including the cost of boarding juries and that of the jailer,” Tenn. Code Ann. § 40-25-133, as
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well as “all costs incident to the arrest and safekeeping of the defendant, before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence of the court into effect,” Tenn. Code Ann. § 40-25-104.
The procedures related to court costs vary, depending on the court in which a verdict is entered. Some, but not all, misdemeanor prosecutions are resolved in general sessions court. See Tenn. Code Ann. § 40-1-109 (explaining general sessions jurisdiction over certain misdemeanor matters). “[T]he presiding judge of a court of general sessions may suspend the court costs . . . for any indigent criminal defendant, as in the presiding judge’s opinion the equities of the case require.” Tenn. Code Ann. § 40-25-123. The Tennessee Supreme Court has held that, even after a finding of indigency, “the decision of whether to grant a waiver of costs still rests within the court’s discretion.” State v. Black, 897 S.W.2d 680, 684 (Tenn. 1995); see also Waters v. Ray, No. M2008-02086-COA-R3-CV, 2009 WL 5173718, at *5 (Tenn. Ct. App. Dec. 29, 2009) (endorsing holding of Black).
Felonies, as well as the misdemeanors not resolved in general sessions, are tried or otherwise resolved in criminal courts or circuit courts. See Tenn. Code Ann. §§ 40-1-108, 16-10102. The statutory terms pursuant to which a person in criminal or circuit court may seek relief from costs have been recently amended, with the amendments having gone into effect on January 1, 2018. See 2017 Tenn. Pub. Acts, ch. 412 (S.B. 802). A person who is “unable to pay all of the assessed litigation taxes, court costs, and fines but is able to pay some of them” may apply to the court of his conviction for a payment plan that would expressly shield him from the revocation of his driver’s license:
A person who is unable to pay all of the assessed litigation taxes, court costs, and fines but is able to pay some of them may apply to the court having original jurisdiction over the offense for an order setting up a payment plan for such taxes, costs, and fines. If the person and court agree to such a payment plan, the court
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shall so order and such order shall have the effect of staying the revocation of the license pursuant to this subsection (b). The order staying the revocation of license shall remain in effect for as long as the person is current and in compliance with the payment plan. Tenn. Code Ann. § 40-24-105(b)(4)(A). If the person is granted a payment plan and fails to make payments thereunder “for three (3) consecutive months without good cause, the court may revoke the order and notify the clerk.” Id. A version of that payment plan provision existed prior to the January 1, 2018 amendment. See Tenn. Code Ann. § 40-24-105(b)(4) (2017). The 2018 amendment added an additional subsection providing that a person who is indigent “may . . . apply for the waiver of any outstanding court costs and fines.” Tenn. Code Ann. § 40-24-105(b)(4)(B). A person seeking a waiver must provide an affidavit of indigency and pay a $50 fee, “subject to the discretion of the court after consideration of the person’s ability to pay.” Tenn. Code Ann. § 40-24-105(b)(4)(B)(i)–(ii). “After consideration of the affidavit of indigency and the payment of any fee that may be required . . . , the court may waive any outstanding court costs and fines.” Tenn. Code Ann. § 40-24-105(b)(4)(C). Because this provision is fairly new, it has not been widely construed. The court notes, however, that its waiver provision appears to be permissive in nature, using “may” instead of “shall” or similar language. In response to the plaintiffs’ assertion that the statute, as amended, makes the decision to offer relief entirely discretionary for the court, Purkey admits that “the text of Tenn. Code Ann. § 40-24-105(b) . . . speaks for itself.” (Docket No. 64 ¶ 51.) 3. Litigation Tax Tennessee’s constitution grants the General Assembly a number of specific powers of taxation, including the “power to tax . . . privileges.” Tenn. Const. art. II, § 28. Pursuant to that power, the state levies “privilege tax[es] on litigation” in various amounts, depending on the type of case at issue. Tenn. Code Ann. § 67-4-602. For example, “[t]here is levied a privilege tax on
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litigation of seventeen dollars and seventy-five cents ($17.75) in all civil cases in this state in general sessions court, when not exercising state court jurisdiction,” and a “a privilege tax on litigation of thirteen dollars and seventy-five cents ($13.75) in all civil cases in this state in the court of appeals or the supreme court.” Tenn. Code Ann. § 67-4-602(c), (d). In criminal cases, “[t]here is levied a privilege tax on litigation instituted in this state, of twenty-nine dollars and fifty cents ($29.50) on all criminal charges, upon conviction or by order.” Tenn. Code Ann. § 674-602(a).
Just as the amount of the tax varies between different types of cases, so too does the issue of when the litigation tax becomes due. See, e.g., Tenn. Code Ann. § 67-4-603(a)(1) (directing the clerk to collect tax “[u]pon the commencement of an original civil action, from the plaintiff, except when such action is brought pursuant to a pauper’s oath”); (a)(3) (directing the clerk to collect tax “[u]pon the filing in any civil action of an appeal, or of an appeal in the nature of a writ of error or certiorari, from one court to another, from the appellant, except when such appeal is brought pursuant to a pauper’s oath”). In a criminal case, the tax is due “[u]pon a finding of guilt, plea of guilty, or submission to fine in a criminal action from the defendant.” Tenn. Code Ann. § 67-4-603(a)(2).
The collection of litigation taxes is delegated to “[t]he clerks of the various courts” in which litigation takes place. Tenn. Code Ann. § 67-4-603(a). The clerk then has an obligation to remit the state litigation tax to Tennessee’s department of revenue. If the clerk fails to transmit the tax collected, the amount improperly withheld “shall be a debt of the clerk.” Tenn. Code Ann. § 67-4-605(a)(1).
Counties and municipalities are also given authority to levy certain “local litigation tax[es]” devoted to specific, statutorily defined purposes, including building or upgrading the
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jails and workhouses, Tenn. Code Ann. § 67-4-601(b)(1); purchasing and maintaining hardware
and software related to record keeping, Tenn. Code Ann. § 67-4-601(b)(7)(B); providing security
to courthouses, Tenn. Code Ann. § 67-4-601(b)(6); and “substance abuse prevention purposes,”
Tenn. Code Ann. § 67-4-601(h).
Tennessee’s statutory scheme contemplates that, in some instances, a court may grant a
litigant some manner of relief from litigation taxes. The precise circumstances of when that relief
should or will be granted, however, are not set forth in the relevant statute:
If the judge of any court suspends, releases, waives, remits or orders the clerk of the court not to collect any privilege tax on litigation, or in any other manner releases any party from liability for any privilege tax on litigation, the clerk of the court shall immediately report such suspension, release, waiver, remission, or order to not collect such tax, to the department in such manner as shall be prescribed by the department, and the commissioner or the commissioner’s delegate shall immediately, upon receipt of such a report from any clerk of a court, present such information to the board of judicial conduct, which court shall take appropriate action pursuant to title 17, chapter 5. The commissioner or the commissioner’s delegate shall also report such information to the council on pensions and insurance.
Tenn. Code Ann. § 67-4-605(c). Purkey admits that, depending on the case, “litigation taxes and
court costs can range from about $200 at the low end to more than $10,000.” (Docket No. 64 ¶
11; see also Docket No. 40 ¶ 11 (stipulating same).)
B. Mechanisms for Collecting Court Debt
If an individual fails to pay fines, court costs, or litigation taxes, the court and state have a
number of options. First, the state or court can resort to the ordinary tools of collection available
to other litigants in the state’s courts. “[A] fine may be collected in the same manner as a
judgment in a civil action.” Tenn. Code Ann. § 40-24-105(a). The same is true for costs and
litigation taxes: “The district attorney general or the county or municipal attorney, as applicable,
may, in that person’s discretion, and shall, upon order of the court, institute proceedings to
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collect the fine, costs and litigation taxes as a civil judgment.” Tenn. Code Ann. § 40-24-105(c). The collection tools related to civil judgments remain available for all three types of court debt after the defendant’s sentence is complete and the sentencing court loses its original jurisdiction:
If any fine, costs or litigation taxes assessed against the defendant in a criminal case remain in default when the defendant is released from the sentence imposed, the sentence expires or the criminal court otherwise loses jurisdiction over the defendant, the sentencing judge, clerk or district attorney general may have the amount remaining in default converted to a civil judgment pursuant to the Tennessee Rules of Civil Procedure. The judgment may be enforced as is provided in this section or in any other manner authorized by law for a civil judgment. Tenn. Code Ann. § 40-24-105(f). Tennessee affords a number of tools to judgment creditors in civil actions, namely garnishment of wages or other sources of income, Tenn. R. Civ. P. 69.05, execution on realty, Tenn. R. Civ. P. 69.07, and execution on personalty, Tenn. R. Civ. P. 69.06. See also Tenn. Op. Att’y Gen. No. 06-135 (Aug. 21, 2006) (discussing application of Rule 69 collection mechanisms in criminal cases). Neither the court nor the state, moreover, is forced to rely purely on its own personnel or attention to effect collection. “After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes.” Tenn. Code Ann. § 40-24-105(d)(1). Similarly, “[t]he governing body of any municipality may by ordinance authorize the employment of a collection agency to collect fines and costs assessed by the municipal court where the fines and costs have not been collected within sixty (60) days after they were due.” Tenn. Code Ann. § 40-24-105(e)(1). If traditional collection methods are insufficient, more coercive options are available, in particular with regard to fines. Prior to 2007, Tennessee statutes did not expressly contemplate
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that a person could be held in contempt for failure to pay a fine. (Docket No. 64 ¶¶ 18–19.) That year, the General Assembly adopted a provision stating that the court that imposes a fine also has the option of holding a person who has failed to pay in “contempt upon a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay.” Tenn. Code Ann. § 40-24-105. C. Revocation of Drivers’ Licenses for Nonpayment of Court Debt
At issue in this case, however, is one particular consequence of the failure to pay court debt: the revocation of the debtor’s driver’s license. The State of Tennessee generally prohibits drivers from using its highways without a license. Tenn. Code Ann. § 55-50-301(a)(1). That licensure scheme is administered by the TDSHS pursuant to Tennessee’s Uniform Classified and Commercial Driver License Act, Tenn. Code Ann. § 55-50-201 et seq. An applicant for a Tennessee driver’s license must furnish certain required information confirming his eligibility and submit to an examination, including “an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle.” Tenn. Code Ann. §§ 55-50-321, 5550-322(a)(1)(A). In certain statutorily prescribed situations, however, an individual who has previously obtained a valid driver’s license may have the associated privileges rescinded, through revocation, suspension, or cancellation of the license. See, e.g., Tenn. Code Ann. §§ 5550-501, 55-50-502(a) & (b).
Prior to 2011, a person’s failure to pay fines, costs, and litigation taxes had no bearing on the possible revocation of a Tennessee driver’s license. (Docket No. 64 ¶¶ 14, 16–17.) That year, the Tennessee General Assembly enacted the provision that is now codified as Tenn. Code Ann. § 40-24-105(b)(1):
A license issued under title 55 for any operator or chauffeur shall be revoked by the commissioner of safety if the licensee has not paid all litigation taxes, court
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costs, and fines assessed as a result of disposition of any offense under the criminal laws of this state within one (1) year of the date of disposition of the offense. The license shall remain revoked until such time as the person whose license has been revoked provides proof to the commissioner of safety that all litigation taxes, court costs, and fines have been paid.
Tenn. Code Ann. § 40-24-105(b)(1). Purkey admits that, from July 1, 2012, to June 1, 2016,
TDSHS revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes.
(Docket No. 64 ¶ 107.) Over the same period, only 10,750 people whose licenses were revoked
for non-payment of fines, costs, or litigation taxes pursuant to section 40-24-105(b)—about 7%
of the total number—had their licenses reinstated. (Id. ¶ 108; see also Docket No. 40 ¶¶ 43–44
(stipulating to statistics).)
A driver facing the revocation of his license pursuant to Tenn. Code Ann. 40-24-
105(b)(1) may seek a single, 180-day stay of the revocation from the court having original
jurisdiction over the underlying offense. Tenn. Code Ann. § 40-24-105(b)(3)(A). The statute
characterizes this time-limited stay as a “hardship exception.” Tenn. Code Ann. § 40-24-
105(b)(3)(B). Pursuant to the statute:
Grounds for finding of hardship are limited to travel necessary for: (i) Employment; (ii) School; (iii) Religious worship; (iv) Participation in a recovery court, which includes drug courts under the Drug Court Treatment Act of 2003, compiled in title 16, chapter 22; DUI courts; mental health courts; and veterans treatment courts; (v) Serious illness of the person or an immediate family member; or (vi) Other reasons or destinations as determined by the court.
Tenn. Code Ann. § 40-24-105(b)(3)(A). The amendments going into effect in January 2018 also
added a subsection permitting a person whose license was revoked for nonpayment of court debt
to apply to the trial court for the issuance of a restricted license for the purposes of engaging in
the types of driving identified in the hardship exception, with the license issued under the new
subsection not being limited to 180 days. Tenn. Code Ann. § 40-24-105(h). The issuance of a
restricted license under the new provision, however, is within the “authority and discretion” of
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the court. Id. (See also Docket No. 40 ¶ 38 (stipulating that relief under § 40-24-105(h) is discretionary).) A driver who obtains an order permitting him to receive a restricted license pursuant to section 40-24-105(h) must pay a $65 fee to TDSHS to obtain the license. A section 40-24-105(h) license is valid for one year, after which the driver may seek renewal. In contrast, an ordinary driver’s license is issued for eight years and costs $28. (Docket No. 64 ¶¶ 55–57.)
Because litigation taxes, court costs, and fines are assessed at the local level, but drivers are licensed at the state level, the administration of section 40-24-105(b) requires coordination between the respective units of government. Pursuant to section 40-24-105(b)(2), “[t]he clerk of the court ordering disposition of an offense shall notify the commissioner of safety when an offender has litigation taxes, court costs, and fines that remain unpaid after one (1) year from the disposition of the offense,” at which point the commissioner is required by statute to revoke the license. An individual may be treated as having a revoked license, even if he was not licensed to drive by the State of Tennessee as an initial matter; TDSHS simply assigns such a person a driver’s license number and classifies the corresponding “license” as revoked. (Docket No. 64 ¶ 31.)
Purkey admits that, when his office receives notification from a clerk of court that an individual qualifies for revocation of his license, “the Department revokes a person’s driver’s license on the same day that it receives notification of non-payment from the court.” (Docket No. 64 ¶ 28.) However, he draws a distinction between when a license is “effective” and when the “status” of the debtor’s license is changed: “[W]hile revocation is effective as of the date that notification is [sent]1 to the driver by the Department, the Department does not change the status of the driver’s license for a period of 10 days in order to allow the driver to receive notification
1 Purkey uses the word “set” here, but the court presumes that this is a typographical error.
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from the Department.” (Id.; see also Docket No. 62-4 (Declaration of Randi Cortazar) ¶ 2 (“While revocations are effective as of the date the notification is [sent] to the driver, the Department does not change the status of the driver’s license for a period of 10 days in order to allow the driver to receive notification from the Department”).) Purkey admits that TDSHS “does not send pre-revocation notices to the people whose licenses will be revoked pursuant to Tenn. Code. Ann. § 40-24-105(b) for failure to pay their restitution, litigation taxes, fines, and/or court costs” but maintains that TDSHS “sends out proposed notices2 of suspension or revocation the day information is received from the court.” (Docket No. 64 ¶ 34 (quoting Docket No. 39-2 (E-mail from Jenny C. Taylor to Joshua Van Kirk).)
A driver whose license has been revoked is required to pay “[a] sixty-five-dollar restoration fee . . . , unless otherwise specified by law, for each and every offense committed that provides for the revocation . . . of driving privileges.” Tenn. Code Ann. § 55-12-129(b). TDSHS is permitted to adopt payment plans for restoration fees in excess of a certain amount set by Purkey. Tenn. Code Ann. § 55-12-129(g)(1). TDSHS currently permits payment plans only for drivers “whose reinstatement fee totals more than two hundred dollars ($200).” Tenn. Comp. R. & Regs. 1340-02-05-.02.
For the first offense, driving on a revoked license is a Class B Misdemeanor, punishable by up to six months in jail, a fine of up to $500, or both. Tenn. Code Ann. §§ 40-35-111(e)(2), 55-50-504(a)(1). For second and subsequent offenses, driving on a revoked license is a Class A Misdemeanor, punishable by up to 11 months and 29 days in jail, a fine of up to $2,500, or both. Tenn. Code Ann. §§ 40-35-111(e)(1), 55-50-504(a)(2). Purkey concedes that a person’s conviction for driving on a revoked license may lead to the imposition of additional fines, costs, and litigation taxes. (Docket No. 64 ¶ 111.) 2 It is not entirely clear what Purkey means by this “proposed notice.”
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D. Circumstances of the Plaintiffs’ Revocations 1. Thomas James Thomas is a 48-year-old resident of Nashville. He has multiple serious disabilities
and his only income consists of Supplemental Security Income (“SSI”) and Supplemental Nutrition Assistance Program (“SNAP”) benefits. (Docket No. 64 ¶ 60.) In 2013, Thomas was charged with criminal trespass in Davidson County after taking shelter under a bridge during the rain while homeless. (Id. ¶ 64.) Thomas represented himself pro se, pled guilty, and was given a thirty-day suspended sentence and assessed $289.70 in court costs. Purkey concedes, for the purposes of summary judgment, that, on the day of his guilty plea, Thomas went to the clerk’s office and advised the clerk that he was unable to pay the court costs because he was homeless and had no money. (Id. ¶ 66.)
For the three years following his guilty plea, Thomas did not hear anything further about his court debt. (Docket No. 64 ¶ 67.) The Financial Responsibility Section of TDSHS had issued a letter, dated December 2, 2014, to Thomas at a Nashville address informing him:
Pursuant to [Tenn. Code Ann.] § 40-24-105, your motor vehicle driver license, driving privileges, and privilege to obtain a license in the state of Tennessee are revoked for failure to pay litigation taxes, court costs, and fines assessed by the court in DAVIDSON COUNTY. You are to mail your Tennessee Driver License to the address given at the end of this notice, or surrender it at any office of the Tennessee Highway Patrol or Driver Services Center in Tennessee. (Docket No. 62-5.) For purposes of summary judgment, however, Purkey concedes that Thomas never received written notice of his revocation. (Docket No. 89 ¶ 11.) In October 2016, Thomas sought to apply for a Tennessee driver’s license, only to learn that he was prevented from doing so by a license revocation related to his unpaid costs. (Id. ¶ 61.) Purkey admits, for summary judgment purposes, that Thomas “currently survives on very limited subsistence income for people who are totally and permanently disabled” and “cannot afford to pay the $289.70 in Court
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Debt, the $65 reinstatement fee, and the additional application fee necessary to regain his driving privileges.” (Id. ¶ 71.)
2. Hixson David Hixson is a 50-year-old resident of Nashville. When he filed this case, he was living in a homeless shelter. Thereafter, Hixson moved into private housing, but he was unable to make his rental payments and, as of the time he filed his statement of undisputed material facts, was living in a tent. (Id. ¶¶ 74–76.) His driver’s license was revoked in 2014 for failure to pay court debt related, at least in part, to a criminal conviction in Washington County.3 Purkey admits, for summary judgment purposes, that, when Hixson accrued the court debt, he was incarcerated and unable to pay. (Id. ¶ 77.) TDSHS revocation notice letters appear to have been generated and issued for Hixson on two occasions (Docket Nos. 62-6 & -7), although Purkey concedes, for purposes of summary judgment, that Hixson never received those letters (Docket No. 89 ¶ 10). Hixson now works part-time as a vehicle emissions inspector, but he struggles to afford basic necessities. (Docket No. 64 ¶ 81.) Hixson claims that he is generally qualified to work as a motorcycle mechanic, but he cannot do so due to his lack of a driver’s license. (Id. ¶¶ 82–85.) He identifies a total of $2,583.80 of court debt, for which he remains liable, in addition to the fees he would be required to pay to have his license reinstated. (Id. ¶ 88.) E. Procedural History Thomas and Hixson filed their Complaint in this matter on January 4, 2017, naming Purkey, as well as Tennessee’s Governor and Attorney General, as defendants in their official
3 The parties devote a substantial amount of time and effort to arguing over the details of Hixson’s criminal record and the circumstances in which he accrued his court debt and faced a revocation. None of those disagreements, however, negates the fundamental allegations of his claim, namely that he is indigent and that his license was revoked for nonpayment of court debt. The court, accordingly, will not pass further judgment on any of those contested background facts here.
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capacities. (Docket No. 1.) Thomas and Hixson seek to represent a class defined as “[a]ll persons whose Tennessee driver’s licenses have been or will be revoked pursuant to the Statute [Tenn. Code Ann. § 40-24-105(b)] and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances.” (Id. ¶ 93.) They plead three causes of action under 42 U.S.C. § 1983: first, for violation of due process and equal protection rights by the “mandatory revocation of people’s driver’s licenses because they are too poor to pay Court Debt without any inquiry into their ability to pay” (Id. ¶ 100); second, for violation of their due process right to notice and a hearing on whether they can pay their court debt (Id. ¶ 101); and third, for violation of equal protection based on Tennessee’s policy of revoking the licenses of court debtors and not other debtors (Id. ¶ 102).
Purkey filed a Motion to Dismiss and Defer Issues Related to Class Certification on March 3, 2017. (Docket No. 23.) Thomas and Hixson filed a Renewed Motion for Class Certification (Docket No. 36) and a Motion for Summary Judgment (Docket No. 37) on August 18, 2017. On October 10, 2016, the named defendants other than Purkey were dismissed without prejudice upon the agreement of the parties. (Docket No. 55.) Purkey filed a Motion for Summary Judgment on November 6, 2017 (Docket No. 61), which repeats and adds to the arguments raised in his motion to dismiss.
II. LEGAL STANDARD A. Motion to Dismiss
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
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F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556. B. Motion for Summary Judgment
Rule 56 requires the court to grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To win summary judgment as to the claim of an adverse party, a moving defendant must show that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim. Once the moving defendant makes its initial showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren,
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578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “the judge’s function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 249. An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252). C. Motion to Certify Class
The principal purpose of class actions is to achieve efficiency and economy of litigation, both with respect to the parties and the courts. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 159, (1982). The Supreme Court has observed that, as an exception to the usual rule that litigation is conducted by and on behalf of individual named parties, “[c]lass relief is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’ and when they ‘turn on questions of law applicable in the same manner to each member of the class.’” Id. at 155 (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). The Court directs that, before certifying a class, district courts must conduct a “rigorous analysis” of the prerequisites of Rule 23 of the Federal Rules of Civil Procedure. Falcon, 457 U.S. at 161. The Sixth Circuit has stated that district courts have broad discretion in deciding whether to certify a class, but that courts must exercise that
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discretion within the framework of Rule 23. Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).
Although a court considering class certification may not inquire into the merits of the underlying claim, a class action may not be certified merely on the basis of its designation as such in the pleadings. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); In re Am. Med. Sys., Inc., 75 F.3d at 1079. In evaluating whether class certification is appropriate, “it may be necessary for the court to probe behind the pleadings,” as the issues concerning whether it is appropriate to certify a class are often “enmeshed” within the legal and factual considerations raised by the litigation. Falcon, 457 U.S. at 160; see also In re Am. Med. Sys., Inc., 75 F.3d at 1079; Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974). Moreover, the party seeking class certification bears the burden of establishing that the requisites are met. See Alkire v. Irving, 330 F.3d 802, 820 (6th Cir. 2003); Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976).
III. ANALYSIS A. Rooker-Feldman
Purkey argues first that, pursuant to the Rooker-Feldman doctrine, this court lacks subject matter jurisdiction over the claims in this case. He argues that Thomas and Hixson are basically seeking relief from the underlying state court judgments against them, which amounts to an impermissible intrusion on the state court process. Thomas and Hixson counter that they do not challenge any state court judgment, but rather TDSHS’s revocation of their driver’s licenses alone. Thomas and Hixson contend that they do not seek to set their court debt aside or challenge any aspect of their convictions. Rather, they are challenging only a specific statutory
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consequence of their continuing inability to pay the amounts assessed against them, as administered by TDSHS.
The Rooker-Feldman doctrine is derived from two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Rooker-Feldman, as a principle, stands for the proposition that a federal district court lacks subject matter jurisdiction to conduct an appellate review of a state court decision. Pittman v. Cuyahoga Cty. Dep’t of Children and Family Servs., 241 F. App’x 285, 287 (6th Cir. 2007). By the same token, a federal court cannot issue injunctive relief that would, as a practical matter, amount to an exercise of the interjurisdictional appellate function that RookerFeldman forbids. See Lawrence v. Welch, 531 F.3d 364, 371–72 (6th Cir. 2008) (“[C]laims seeking injunctive relief are barred by Rooker-Feldman if they necessarily require the federal court to determine that a state court judgment was erroneously entered.”).
However, the Rooker-Feldman doctrine is “not a panacea to be applied whenever state court decisions and federal court decisions potentially or actually overlap.” McCormick v. Braverman, 451 F.3d 382, 395 (6th Cir. 2006); see also Givens v. Homecomings Fin., 278 F. App’x 607, 609 (6th Cir. 2008) (referring to the “narrow range of cases” implicated by RookerFeldman). The Supreme Court has stated that Rooker-Feldman “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court 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). The Sixth Circuit, accordingly, has “distinguished between plaintiffs who bring an impermissible attack on a state court judgment— situations in which Rooker-Feldman applies—and plaintiffs who assert independent claims
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before the district court—situations in which Rooker-Feldman does not apply.” Pittman, 241 F. App’x at 287.
In making this distinction, the court must look to “the source of the injury the plaintiff alleges in the federal complaint. If the source of the injury is the state court decision,” then the Rooker-Feldman doctrine prevents the federal court from deciding the case. McCormick, 451 F.3d at 393. “If,” however, “there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim.” Id. The court must decide whether it is being called on to consider whether the state court judgment “in and of [itself] violate[s] the federal Constitution or federal law,” or whether the complaining party bases its argument on some unlawful action or policy outside the four corners of that judgment. Id. at 392. “The appropriate inquiry is not whether the district court would be required to ‘overrule’ in some technical way the state court judgment, but is instead whether the constitutional claim presented by the plaintiff is so intertwined with the state court proceedings that a federal court review of the claim would necessarily constitute a review of the state court’s decision, such that a federal court decision in the plaintiff’s favor would call the state court decision into question.” Pancake v. McCowan, 64 F. App’x 464, 466 (6th Cir. 2003).
Under Rooker-Feldman, this court cannot penetrate the closed circle between the litigants and the court in a state case. But “sometimes a state-court judgment gives rise to a new problem . . . and that . . . new problem can get federal review without impermissible examination of the initial state-court decision.” Market. v. City of Garden City, Kan., No. 16-3293, 2017 WL 6388812, at *3 (10th Cir. Dec. 14, 2017). The reality of our legally complex, multi-jurisdictional system is that the judgment of a court may be the catalyst of a complex and far-reaching array of events and consequences that go well beyond what the court itself decided. A court entering a
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money judgment in one jurisdiction may be creating the basis for collection proceedings a thousand miles away, involving assets, rules, obligations, and interests that appear nowhere in the court’s reasoning or judgment. See Condaire, Inc. v. Allied Piping, Inc., 286 F.3d 353, 356 (6th Cir. 2002) (discussing procedures for collecting judgment entered in one federal district against property in another federal district pursuant to 28 U.S.C. § 1963). A judgment of guilt in a criminal trial may give rise to collateral consequences that neither the defendant nor the court foresaw because the statutory basis for those consequences had not even been enacted at the time of the conviction. See Doe v. Bredesen, 507 F.3d 998, 1007 (6th Cir. 2007) (upholding retroactive application of Tennessee’s sexual offender registration requirements). Court A’s criminal verdict may play a role in Court B’s parental rights case or Agency C’s decision on whether to grant a license. See, e.g., Tenn. Code Ann. § 36-1-113(g)(6) (establishing basis for termination of parental rights based on incarceration under a sentence of ten or more years); Tenn. Code Ann. § 68-140-311(a)(1)(E) (providing for denial of emergency medical services licensure based on conviction of a crime of moral turpitude). In other words, a judgment may echo throughout the life of a litigant, in ways foreseeable or unforeseeable, far beyond the facial terms of the judgment itself. Rooker-Feldman protects the judgment, but not necessarily its farreaching consequences.
Several courts have considered Rooker-Feldman in the context of judgment collection mechanisms and have generally held that the doctrine poses no obstacle to federal jurisdiction, as long as the plaintiff raises “a challenge to the manner of collecting on the state-court judgment,” rather than a “claim . . . contingent upon the invalidity of the underlying debt.” Moore v. Idealease of Wilmington, 465 F. Supp. 2d 484, 490 (E.D.N.C. 2006) (emphasis added) (citing Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432, 437 (6th Cir. 2006); Senftle v.
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Landau, 390 F. Supp. 2d 463, 469 (D. Md. 2005); Wyles v. Excalibur I, LLC, No. 052798JRTJJG, 2006 WL 2583200, at *2 (D. Minn. Sept. 7, 2006)); see also Hageman v. Barton, 817 F.3d 611, 614–16 (8th Cir. 2016) (“Through his federal complaint, [plaintiff] seeks relief from neither the Missouri judgment nor the Illinois garnishment order. Rather, he alleges statutory violations seeking statutory penalties based on [defendant’s] actions in the process of obtaining the judgment and order. [Therefore,] Rooker-Feldman does not apply, and we may exercise jurisdiction over [plaintiff’s] federal claims.”); Moran v. Greene & Cooper Attorneys LLP, 43 F. Supp. 3d 907, 911–12 (S.D. Ind. 2014) (“Plaintiff does not challenge the validity of the state court judgment against him—neither its amount nor the methods used by the creditor to obtain it. . . . [W]e could find that Defendant violated the statute without ‘reviewing’ the state court judgment, and [the] Rooker-Feldman doctrine therefore presents no impediment to our exercise of jurisdiction.”); Ness v. Gurstel Chargo, P.A., 933 F. Supp. 2d 1156, 1162–63 (D. Minn. 2013) (“These allegations appear to attack Defendants’ debt-collection practices rather than the state-court judgments, so for the purposes of deciding this motion, the Court determines that Rooker-Feldman does not bar these . . . claims.”); Meyer v. Debt Recovery Sols. of Ohio, Inc., No. 1:10CV363, 2010 WL 3515663, at *4 (N.D. Ohio Sept. 2, 2010) (holding that RookerFeldman did not apply “[b]ecause the plaintiffs challenged the manner of collection rather than the underlying debt”).
The Sixth Circuit addressed the issue in Todd v. Weltman, Weinberg & Reis Co., in which a judgment debtor filed suit under the Fair Debt Collection Practices Act based on the judgment creditor’s filing of an allegedly false affidavit under Ohio’s garnishment statute. 434 F.2d at 437. The Sixth Circuit concluded that Rooker-Feldman did not bar jurisdiction, because the plaintiff “d[id] not complain of injuries caused by this state court judgment, as the plaintiffs did in Rooker
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and Feldman,” but rather raised “an independent federal claim that Plaintiff was injured by” the
defendant’s collection activities. Id. at 437. The same principle would apply to permit
jurisdiction here. Fundamental to Rooker-Feldman is the question of whether the federal courts
are being asked, either actually or practically, to exercise an appellate function. “Where federal
relief can only be predicated upon a conviction that the state court was wrong, it is difficult to
conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the
state-court judgment.” Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998) (quoting Keene Corp.
v. Cass, 908 F.2d 293, 296–97 (8th Cir. 1990)). Neither Thomas nor Hixson argues that
Tennessee state courts committed error either in entering their convictions or in assessing fines,
costs, or litigation taxes against them. Nor do Thomas and Hixson challenge the relevant courts’
or prosecutors’ rights to enforce that debt against them through the various ordinary collection
mechanisms that the law makes available to creditors. Thomas and Hixson seek only one thing:
that the state not take away their lawful ability to drive based on the fact that they cannot
currently pay the amounts they owe. Their challenge is to one inherently post-judgment coercive
tool used in the state’s collection regime—not to any judgment itself.4
To bolster his Rooker-Feldman argument, Purkey points to the various statutory bases
pursuant to which an individual facing court debt can ask a relevant court, within its discretion,
4 Purkey urges the court to follow the lead of two district courts that applied Rooker-Feldman to bar pro se plaintiffs’ claims challenging their driver’s license revocations or suspensions. King v. Creed, No. 1:14-CV-0165, 2016 WL 204492, at *2–3 (N.D.N.Y. Jan. 15, 2016); Normandeau v. City of Phoenix, 516 F. Supp. 2d 1054, 1064 (D. Ariz. 2005). Purkey cites these cases for the proposition that Rooker-Feldman bars suits challenging revocations that have a “causal relationship” to state-court judgments. (Docket No. 88 at 7 (quoting McKithen v. Brown, 481 F.3d 89, 98 (2d Cir. 2007)).) Insofar as those cases are based on such a rule, it is plainly incompatible with the Sixth Circuit’s recognition, in Todd, that suits based on a judgment creditor’s collection efforts are permissible as long as they do not challenge the original judgment. 434 F.2d at 437. The Supreme Court, moreover, has stated unambiguously that a causal connection is a necessary, but not sufficient, condition for applying Rooker-Feldman, writing that the doctrine reaches “cases [1] brought by state-court losers [2] complaining of injuries caused by state-court judgments [3] rendered before the district court proceedings commenced and [4] inviting district court review and rejection of those judgments.” Exxon, 544 U.S. at 284 (emphasis added).
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for some form of relief from his debt or some consideration of his indigency. See Tenn. Code Ann. §§ 40, 24-102, 40-25-123(b), 40-24-102, 40-24-105(h), 67-4-605(c). Because such avenues are available, Purkey argues, the plaintiffs’ claims are the equivalent of a direct challenge to the state courts’ failure to grant the relevant relief. Rooker-Feldman, however, insulates actual state court judgments, not hypothetical ones. See Exxon, 544 U.S. at 284 (noting that Rooker-Feldman applies only to judgments actually “rendered before the district court proceedings commenced”). Thomas and Hixson are not challenging any judgment made pursuant to the cited statutes, nor are they even arguing that they are entitled to have fines, costs, or litigation taxes waived. Thomas and Hixson seek relief from one specific statutory consequence of their failure to pay— the revocation of their licenses—that took effect long after the fines, costs, or litigation taxes were imposed, based on a fact—their nonpayment after one year—that was not, nor could have been, adjudicated in the original criminal proceedings.
Purkey argues, in essence, that as long as Tennessee state law permits the plaintiffs to raise the issue of their indigence to a court in some form, pursuant to some standard, then Rooker-Feldman wholly shields state and local agencies from any federal suit based on those agencies’ actions related to nonpayment. The narrow protections of Rooker-Feldman require no such result. What Thomas and Hixson have raised is clearly a challenge to the operation of a supplemental statutory mechanism for seeking to coerce or encourage the payment of their debts—not any actual feature of the judgments against them or the debts in and of themselves. The court, accordingly, will not grant summary judgment or dismissal based on the RookerFeldman doctrine.
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B. Constitutionality of Applying Tenn. Code Ann. § 40-24-105(b) to Indigent Debtors To prevail on a claim under § 1983, a plaintiff must prove two elements: (1) that he was
deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of law. Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). In both his motion to dismiss and his motion for summary judgment, Purkey argues that Thomas and Hixson cannot prevail, because they cannot establish any constitutional violation related to the section 40-24-105(b) revocation scheme. In response and in support of their own motion for summary judgment, Thomas and Hixson argue that section 40-24-105(b) is unconstitutional under a straightforward application of a number of Supreme Court cases, starting with Griffin v. Illinois, 351 U.S. 12 (1956). See also Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971); Mayer v. City of Chicago, 404 U.S. 189 (1971); James v. Strange, 407 U.S. 128 (1972); Bearden v. Georgia, 461 U.S. 660 (1983). Purkey argues that the state’s scheme is subject only to rational basis review, which it survives. See Midkiff v. Adams Cty. Reg’l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005) (“Under rational basis review, the governmental policy at issue will be afforded a strong presumption of validity and must be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate government purpose.” (citations & internal quotation marks omitted)).
1. Count I a. The Griffin Cases
Starting with Griffin, and continuing through several cases decided over the ensuing decades, the Supreme Court set forth certain core protections due to indigent persons—primarily criminal defendants—under the constitutional guarantees of due process and equal protection. In Griffin, the Supreme Court, through divided opinions, held that the State of Illinois had violated
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both the Due Process and Equal Protection Clauses of the Fourteenth Amendment by failing to furnish trial transcripts to criminal defendants who needed the transcripts to obtain appellate review of their convictions but were unable to afford the required fees. Justice Black, writing the lead opinion, explained that, although Illinois’ requirements, on their face, applied equally to all criminal appellants, their effect was “to deny adequate appellate review to the poor while granting such review to all others,” which, the full majority agreed, was impermissible under the Constitution. Griffin, 351 U.S. at 13.
There are aspects of the analysis in Griffin—though not, necessarily, its holding—that seem to pose a challenge in terms of reconciling the case with the rules that govern constitutional cases today. Now, every law student is encouraged to learn the ordinary formula for considering a challenge under the Equal Protection Clause: “If a protected class or fundamental right is involved, [the court] must apply strict scrutiny, but where no suspect class or fundamental right is implicated, this Court must apply rational basis review.” Midkiff, 409 F.3d at 770 (citing Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000)). The Griffin Court, however, did not explain its holding in terms of either “rational basis” or “strict scrutiny,” presumably because those rubrics had not yet taken the firm hold they now possess over so much constitutional litigation. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas, J., dissenting) (observing that “[o]nly in the 1960’s did the Court begin in earnest to speak of ‘strict scrutiny’ versus reviewing legislation for mere rationality, and to develop the contours of these tests”). Rather, Justice Black explained the Court’s holding as an extension of the basic principle, dating in its roots at least back to the Magna Carta, that “due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.” Griffin, 351 U.S. at 16–17.
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Justice Black stressed that Illinois’ scheme offended the Constitution, even though the Constitution itself did not require Illinois to provide any appellate courts at all. Id. at 18 (citing McKane v. Durston, 153 U.S. 684, 687–88 (1894)). Justice Frankfurter’s opinion completing the majority echoed Justice Black in the relevant respects, observing that “[l]aw addresses itself to actualities,” and “[i]t does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal,” if indigent persons do not have a mechanism to receive an adequate transcript. Id. at 22 (Frankfurter, J., concurring in judgment). Accordingly, “when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons . . . from securing such a review merely by disabling them from bringing” an effective notice of appeal. Id. at 23.
In the years following Griffin, the Supreme Court decided several cases expanding that case’s principle to secure additional rights to indigents working their way through the criminal justice system. See, e.g., Douglas v. California, 372 U.S. 353, 357–58 (1963) (holding that indigent defendants are entitled to counsel on their first direct appeal); Roberts v. LaVallee, 389 U.S. 40, 42 (1967) (holding that indigent defendants are entitled to a free transcript of the preliminary hearing for use at trial). In Williams v. Illinois, the Court extended the logic of Griffin to hold that a court could not increase an indigent defendant’s imprisonment past his maximum sentence, based solely on his inability to pay fines arising out of his conviction. 399 U.S. at 242. In so doing, the Court stressed that a statute’s lack of an exception for indigent persons was the equivalent of improperly imposing a greater punishment based solely on an individual’s inability to pay:
Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the
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risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment. Id. The Court stressed that its holding did not render the state “powerless to enforce judgments against those financially unable to pay a fine,” but rather merely required it to avail itself of the “numerous alternatives” on which it could rely to enforce the convicted person’s debts without unconstitutionally imposing a greater maximum sentence on the indigent than the non-indigent. Id. at 244. The purpose of Griffin, the Williams Court explained, was not to eliminate costs and fees, but to “to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice.” Id. at 241. In Tate v. Short, the Court considered whether the rule set out in Williams applied to a debtor who, unable to pay the fines he had accumulated for traffic offenses, had been committed by a court to service at a municipal farm where he would work “to satisfy the fines at the rate of five dollars for each day.” 401 U.S. at 397. The court ordering him to the farm had original jurisdiction over only offenses for which there was no possibility of confinement, but it had been granted the authority to order confinement based on failure to pay fines. Id. at 396 n.2. The Supreme Court concluded that, “[a]lthough the instant case involves offenses punishable by fines only, petitioner’s imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination [as in Williams] since, like Williams, petitioner was subjected to imprisonment solely because of his indigency.” Id. at 397–98. Again, the Court emphasized that the constitutional defect was not in the act of imposing a consequence on nonpayment, but in the fact that applying that consequence to a truly indigent person had the practical effect of imposing greater punishment based on the economic status of the violator. Id. at 401 (“We emphasize that
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our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.”).
In Mayer v. City of Chicago, the Court considered whether the Griffin right to an adequate appellate record applied in cases where the defendant faced only the threat of a fine, rather than imprisonment. The defendant in Mayer “urge[d]” the Court to adopt a “distinction to set this case apart from Griffin and its progeny”: namely, “that the defendants in all the transcript cases previously decided . . . were sentenced to some term of confinement,” whereas the accused in Mayer was “not subject to imprisonment, but only a fine.” 404 U.S. at 196. The Court rejected any suggestion that the rights set forth in Griffin and subsequent cases were at all contingent on a person’s facing the threat of incarceration:
This argument misconceives the principle of Griffin . . . . [I]ts principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. 404 U.S. at 196–97. The Court explained that the basis for its holdings since Griffin was that refusing to allow an exception for the indigent was, as a constitutional matter, no different from adopting an “unreasoned distinction” punishing indigents more severely than non-indigents for reasons unrelated to their guilt or culpability. Id. at 193 (quoting Rinaldi v. Yeager, 384 U.S. 305, 310 (1966)). “The size of the defendant’s pocketbook,” the Court wrote, “bears no . . . relationship to his guilt or innocence”—and therefore could not form the basis for denying the right to appeal. Id. at 196. Finally, in Bearden v. Georgia, the Court held that Georgia could not revoke an individual’s probation for failure to pay a fine or make restitution without first finding that the probationer was responsible for that failure or that alternative forms of punishment were
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inadequate. 461 U.S. at 672–73. The Court explained that “depriv[ing] the probationer of his conditional freedom simply because, through no fault of his own, he [could not] pay the fine” was “contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. The Bearden Court took the opportunity to consider the Williams line of cases in the context of developments in the law emphasizing the now-commonplace tiered system of judicial review of state actions, noting that “[t]he parties, following the framework of Williams and Tate, have argued the question primarily in terms of equal protection, and debate vigorously whether strict scrutiny or rational basis is the appropriate standard of review.” Id. at 665. The Court, however, noted that the considerations at issue occupied a place in the Court’s constitutional case law where “[d]ue process and equal protection principles converge” and required a more searching analysis:
Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a 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 . . . .” Id. at 666–67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)).
b. Johnson v. Bredesen The Sixth Circuit gave substantial consideration to the Griffin line of cases in Johnson v. Bredesen, in which the court held that Tennessee’s law requiring felons to pay child support and restitution before having their voting rights restored did not offend constitutional principles, despite lacking an indigence exception. 624 F.3d 742, 750 (6th Cir. 2010). The majority opinion in Johnson faulted Griffin and Williams for “fail[ing] to articulate a precise standard of review,” but ultimately concluded that the Griffin line of cases was inapposite because those cases “concerned fundamental interests”—namely, physical liberty and access to the courts—that
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made the laws at issue “subject to heightened scrutiny.” Id. at 749. Because the Johnson court considered the felons’ re-enfranchisement interests non-fundamental and because “a class of less wealthy individuals is not a suspect class,” Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 660 (6th Cir. 2008) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973)), the court applied only rational basis review.
Johnson v. Bredesen is the law of this circuit, and the court will apply it here. The court pauses to note, however, that the simple tiers-of-scrutiny analysis that the Sixth Circuit considered adequate in Johnson cannot simply be substituted for a consideration of the full line of Griffin cases without losing quite a bit in the translation. As the court will explain, one must be careful not to read Johnson in a way that (1) directly contradicts Bearden, (2) misstates the basis of the rights set forth in the earlier Griffin cases, or (3) loses a level of nuance that, as even the Johnson majority itself acknowledged, applies in cases where the statute at issue not only affects indigents but threatens to exacerbate their indigency. The court’s application of Johnson then, will be one that strives to read its holding in harmony with, rather than as a repudiation of, the Supreme Court cases that preceded it.
The parties in Bearden “debate[d] vigorously whether strict scrutiny or rational basis [was] the appropriate standard of review,” but the Court rejected those arguments on the ground that such “easy slogans” and “pigeonhole analysis” were insufficient to the “careful analysis” required by the overlap of the due process and equal protection interests at issue under Griffin. Bearden, 461 U.S. at 665–66. Fitting the principles underlying Griffin into the simple categories sufficient for an ordinary equal protection case, the Court wrote, was a task “too Procrustean to be rationally accomplished.” Id. at 667 n.8 (quoting North Carolina v. Pearce, 395 U.S. 711, 723 (1969)). The Sixth Circuit, in Johnson, acknowledges these statements but nevertheless applies
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its own gloss on Bearden, assuring the reader that, whatever the Supreme Court said, what it
meant was that the Court was applying heightened scrutiny because the fundamental right to
physical liberty was at issue. 624 F.3d at 749. It is difficult for this court to see how Bearden
supports such a reading. In any event, it is sufficient to say that the Sixth Circuit’s conclusion
was that the nature of the rights at issue in Bearden and Johnson justified the differing analyses, but that Bearden remained and remains good law.5
Moreover, the Johnson majority’s contention that the puzzle of the Griffin cases can be
solved by noting that those cases involved “fundamental interests”— freedom from confinement
and access to courts—seems, at first, to be difficult to square with the precedents themselves. In
Mayer v. City of Chicago, the Supreme Court, considering a scheme involving fines only,
expressly considered and rejected the argument that the rule of Griffin was premised on a threat
to the defendant’s physical liberty. 404 U.S. at 196–97. To the contrary, the Court explained that
its holdings arose from the premise that imposing a harsher punishment on a person due to his
indigence amounted to relying on an “‘unreasoned distinction’ proscribed by the Fourteenth
Amendment.” 404 U.S. at 193, 196 (quoting Rinaldi, 384 U.S. at 310); see also M.L.B. v. S.L.J.,
519 U.S. 102, 111 (1996) (“Griffin’s principle has not been confined to cases in which
imprisonment is at stake.”). On the other end of the spectrum, the possibility that the Griffin
cases are about freedom from physical restraint and access to the courts is belied by the fact that
the Supreme Court has expressly declined to apply them in some cases where those interests
5 Purkey seems to suggest that the reasoning set forth, in Griffin through Bearden, was rendered obsolete by the Supreme Court’s brief analysis of those cases in M.L.B. v. S.L.J., 519 U.S. 102 (1996). In M.L.B., the Supreme Court considered the constitutionality of a Mississippi scheme that premised a parent’s appeal of the termination of her parental rights on her payment of over $2,000 in record preparation fees. Id. at 106. In striking down Mississippi’s scheme, the Court did indeed use the language of “fundamental interest[s].” Id. at 113. The analysis in M.L.B., however, was expressly premised on the fact that the proceeding at issue, unlike those in the Griffin cases and here, was neither criminal nor quasi-criminal in nature. Id. at 112–13. The Court stressed that it “has not extended Griffin to the broad array of civil cases,” id. at 116, which Thomas and Hixson do not dispute.
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were implicated. See United States v. MacCollum, 426 U.S. 317, 328–29 (1976) (holding that Griffin does not apply in cases involving an indigent person’s right to obtain a transcript to assist him in obtaining collateral relief); Ross v. Moffitt, 417 U.S. 600, 618 (1974) (holding that Griffin does not grant a right to appointed counsel in a discretionary appeal). Whatever principle is at work in Griffin, then, it is clearly less simple than determining whether access to courts or a risk of confinement is directly implicated, even if that distinction was sufficient to resolve the issue presented by Johnson.
Ultimately, even the Johnson majority opinion concedes that more is going on in its talk of “fundamental interests” than a binary question of whether the statute at issue impinges on something that the courts have identified as a “fundamental right” under the Constitution. At one point, the Johnson court is called on to distinguish James v. Strange, 407 U.S. 128, which the court will discuss in more detail with regard to Count III below. The law at issue in that case, like this one, involved the collection of court-related debt from people who had faced criminal charges. The Court invalidated the Strange scheme under what appeared to be rational basis review, although the Johnson court construed the Strange opinion as having set a higher bar than was required for Tennessee’s re-enfranchisement statute. The Johnson court, rather, concluded that the analysis in Strange did not apply to Johnson because Strange involved a scheme that, by further impoverishing already-indigent debtors, endangered “the hopes of indigents for selfsufficiency and self-respect,” whereas Johnson involved a “mere ‘statutory benefit.’” Johnson, 624 F.3d at 749 (quoting Strange, 407 U.S. at 135; Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010).). But self-sufficiency and self-respect have never been recognized by the Sixth Circuit or the Supreme Court as fundamental rights in a constitutional sense. Cf. Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999) (recognizing the lack of cases recognizing a
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constitutional “general right to private employment”). Under Johnson then, an at least somewhat elevated version of rational basis review would seem to be required in a case where a scheme was alleged to discriminatorily endanger an indigent person’s basic subsistence and capacity for self-sufficiency.
The tiered system of scrutinies has its advantages and, for a large portion of constitutional cases, is sufficient to resolve the questions at hand. The problem is that this is one area of law where the Supreme Court has said, in no uncertain terms, that a different set of tools is called for. Ignoring those holdings in favor of a two-sizes-fit-all approach does not afford the Supreme Court’s cases the precedential weight to which they are entitled. As much as Purkey may argue that the standard, tiered framework is inescapable and unbending, the reality is that the jurisprudence of the Supreme Court says otherwise. In Bearden and elsewhere, the Supreme Court has recognized that, in select areas, “more is involved . . . than the abstract question whether [the challenged law] discriminates against a suspect class, or whether [the matter at issue] is a fundamental right.” Plyler v. Doe, 457 U.S. 202, 223 (1982). While this court has no appetite for inventing new areas for departure from the standard framework, it also sees no ground for ignoring the exceptions that the Supreme Court has already established.
c. Section 40-24-105(b)’s Lack of an Indigence Exception Those caveats aside, Purkey is correct that Johnson calls on us to consider whether section 40-24-105(b) bears on a fundamental interest and apply rational basis review if it does not. The Sixth Circuit has held that “there is no fundamental right to drive a motor vehicle” under the Constitution. Duncan v. Cone, No. 00-5705, 2000 WL 1828089, at *2 (6th Cir. Dec. 7, 2000). The use of a motor vehicle is, however, closely tied to the exercise of rights that have been found to give rise to heightened constitutional protection. It is well settled that “the
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Supreme Court has recognized a protected right to interstate travel.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (citing Saenz v. Roe, 526 U.S. 489, 500 (1999)). The Sixth Circuit, moreover, has gone a step further and “has recognized a protected right to intrastate travel, i.e., ‘a right to travel locally through public spaces and roadways.’” Id. (quoting Johnson v. City of Cincinnati, 310 F.3d 484, 494–98 (6th Cir. 2002)); see also Fowler v. Johnson, No. CV 17-11441, 2017 WL 6379676, at *8 (E.D. Mich. Dec. 14, 2017). That right, as recognized in this circuit, does not generally prohibit the state from denying “a single mode of transportation,” such as driving, to an individual. Fowler, 2017 WL 6379676, at *8 (collecting cases.) A law may “implicate[] the right to travel,” however, “when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” League of United Latin Am. Citizens, 500 F.3d at 535 (citing Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986)). The Sixth Circuit has demonstrated a willingness to consider laws governing the right to drive under that rubric, to determine whether “[s]omething more than a negligible or minimal impact on the right to travel” exists, thereby potentially triggering a heightened level of scrutiny. Id. (citing State of Kansas v. United States, 16 F.3d 436, 442 (D.C. Cir. 1994)). Attention to modes of transport would seem to be particularly important where, as here, the legal matter at issue, by definition, involves people with especially limited resources. A right to intrastate travel that assumes that a homeless person who cannot afford to pay court costs can simply hop into a cab or summon an Uber or a Lyft on a regular basis6 would not seem to be a right that recognizes the specific solicitude afforded to indigent persons in the criminal justice system under Griffin, Williams, Tate, Mayer, and Bearden. 6 Nor can we assume that an adequate system of public transportation exists and is available. Indeed, Purkey concedes that there are parts of Tennessee that public transportation fails to reach altogether. (Docket No. 40 ¶ 42.)
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Consistently with the Sixth Circuit’s prior decisions, the court will not consider the state’s license revocation system as subject to heightened scrutiny merely because it bears, in some way, on a person’s ability to use the roads. At the same time, however, the court notes that, as the degree of the burden imposed increases, a scheme that hinges on taking away one’s right to drive gets closer and closer to the rights to which the Constitution affords special protection. Moreover, as the court will discuss below, the right at issue here bears substantially on the debtor’s interest in self-sufficiency, which the Sixth Circuit recognized, in Johnson, to justify an at least somewhat more searching standard of review. Purkey’s contention that Johnson mandates the application of ordinary rational basis review here, therefore, is questionable.
Nevertheless, even if only the lowest standard of judicial review applies, this court cannot conclude, categorically, that section 40-24-105(b) passes constitutional muster. “Under rational basis review, a law is upheld so long as it is rationally related to a legitimate government purpose. There is a strong presumption of constitutionality and the regulation will be upheld so long as its goal is permissible and the means by which it is designed to achieve that goal are rational.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 694 (6th Cir. 2014) (citing Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000)). Thomas and Hixson do not dispute that collecting fees, costs, and taxes from those who can actually pay them is, generally speaking, a legitimate government purpose.7 See Sickles v. Campbell Cty., Ky., 501 F.3d 726, 731 (6th Cir. 2007) (“[T]he government’s interests—sharing the costs of incarceration and furthering offender accountability—are
7 Purkey identifies a total of seven legitimate purposes related to the state’s scheme, one of which is inapplicable to this analysis because it involves only restitution, which, both parties now agree, is not a basis for revocation of a driver’s license. Each of the six remaining interests is, in one way or another, simply a reformulation or component of the state’s interest in assessing and enforcing fines, costs, and litigation taxes. (See Docket No. 63-1 at 24–25.) Because the legitimacy of the state’s interest is conceded, there is no need to dwell on the many ways that that interest can be restated, subdivided, and characterized.
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substantial . . . .”). Moreover, if Tennessee’s revocation scheme applied only to those debtors capable of paying but unwilling to do so, one could imagine the rational relationship that might exist between the threat of license revocation and the legitimate interest of collecting court debt. That connection, though, falls apart where indigent debtors are concerned. Visiting a harsh consequence on “someone who through no fault of his own is unable to make” the payment sought “will not make [payment] suddenly forthcoming.” Bearden, 461 U.S. at 670. No person can be threatened or coerced into paying money that he does not have and cannot get.
As the Griffin cases demonstrate, before the court applies any level of scrutiny, it must take the preliminary analytic step of defining precisely what “the law” that is being challenged is. Under Griffin and its progeny, the answer is clear: this court is bound to consider Tenn. Code Ann. § 40-24-105(b) as the equivalent of a statute that imposes a harsher sanction on indigent debtors than their non-indigent peers. See Griffin, 351 U.S. at 13 (“There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. ”); Williams, 399 U.S. at 242 (“Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.”); Mayer , 404 U.S. at 193 (reaffirming that Griffin established a prohibition on laws that, in practical effect, created an “unreasoned distinction[]” between the indigent and non-indigent).
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In other words, if the scheme at issue affords no adequate exception based on indigence, Griffin and the cases applying it instruct this court to consider that scheme as the constitutional equivalent of the state’s “us[ing,] as the sole justification for” its action, “the poverty of” the defendant. Bearden, 461 U.S. at 671. The court must “address[] itself to actualities,” Griffin, 351 U.S. at 22, and treat section 40-24-105(b) as what it, as a practical matter, is: a law that guarantees that an indigent person will lose his license while giving a non-indigent person the opportunity not to. That the law is “nondiscriminatory on its face” does not negate the fact that imposing a payment obligation on the indigent “may be grossly discriminatory in its operation.”8 Williams, 399 U.S. at 242 (quoting Griffin, 351 U.S. at 17 n.11). Such a distinction poses constitutional problems, the Supreme Court has stressed, not merely because it might, in some instances, bear on a fundamental right, but because the distinction itself is “unreasoned.” Mayer, 404 U.S. at 193 (quoting Rinaldi , 384 U.S. at 310).
The Johnson court grappled with this question and concluded that the differential treatment of indigent prospective voters was permissible in relation to the state’s goal of ensuring payment of child support and restitution generally. The court wrote that “[t]he legislature may have been concerned, for instance, that a specific exemption for indigent felons would provide an incentive to conceal assets and would result in the state being unable to compel payments from some non-indigent felons.” 624 F.3d at 748. The Johnson majority reasoned that, although the lack of an indigence exception rendered the statute arguably overbroad, that overbreadth was not fatal due to the low level of scrutiny that applied. “That the state used a shotgun instead of a rifle to accomplish its legitimate end,” the court wrote, “is of no moment under rational basis review.” Id. 8 The court notes, however, that the issue of facial neutrality regarding indigence is something of a red herring here. If a statute imposes a sanction on a person for not paying a sum of money, the statute is not, in any meaningful way, neutral on the question of how much money the person has.
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A far different calculus prevails, however, when the privilege lost is the ability to operate a car on the state’s roadways. Unlike the power to vote, the ability to drive is crucial to the debtor’s ability to actually establish the economic self-sufficiency that is necessary to be able to pay the relevant debt. It does not require reams of expert testimony to understand that an individual who cannot drive is at an extraordinary disadvantage in both earning and maintaining material resources. “[D]riving an automobile” is “a virtual necessity for most Americans.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Thomas and Hixson have previewed substantial evidence to that effect, much of which Purkey has objected to on evidentiary, rather than factual, grounds. Even solely on the basis of the undisputed facts and the basic features of life of which the court can take judicial notice, however, the substantial economic disadvantages associated with being unable lawfully to drive are apparent.9
Most obviously, being unable to drive in Tennessee limits the jobs available to a person and makes holding a job difficult once the person has it. “Automobile travel . . . is a basic, pervasive, and often necessary mode of transportation to and from one’s home [and] workplace.” Delaware v. Prouse, 440 U.S. 648, 662 (1979). Some jobs require a person to drive as part of his duties, and even those jobs that do not themselves involve driving generally require the employee to be somewhere, reliably, on time.
The damage that the lack of a driver’s license does to one’s employment prospects is just the beginning. Being unable to drive is the equivalent of a recurring tax or penalty on engaging in the wholly lawful ordinary activities of life—a tax or penalty that someone who was convicted of the same offense, but was able to pay his initial court debt, would never be obligated to pay. When the State of Tennessee takes away a person’s right to drive, that person does not, suddenly
9 Again, Tennessee is not New York City or Chicago, where public transportation is so ubiquitous that many people do not own cars and some never even learn to drive.
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and conveniently, stop having to go to medical appointments, stop having to report to court dates, or stop having to venture into the world to obtain food and necessities. Maybe public transportation will work for some of those activities some of the time, and maybe it will not. Purkey has offered nothing that would permit the court to conclude that public transportation can adequately fill the void left by the loss of a license, and indeed he stipulates, at a minimum, that “[p]ublic transportation is not available in some parts of Tennessee.”(Docket No. 40 ¶ 42.) Similarly, while some individuals with revoked licenses may be able to rely on family or charitable assistance for some purposes, there is no reason to conclude that such options will be available or adequate in most cases. What, then, is a person on a revoked license to do? The lawful options are simple: he can simply forgo the life activities, no matter how important, for which he cannot obtain adequate transportation, or he can incur additional transportation expenses—making himself that much less likely ever to satisfy his court debt.
Of course, an indigent person with a revoked license has another option, besides accepting the practical limitations that the state has placed on him: he can, faced with the need to navigate the world and no feasible, affordable, and legal option for doing so, break the law and drive. The court very deliberately uses “can” here, not “may” or “should,” but it would simply be willful blindness to ignore the fact that some debtors with revoked licenses will be tempted to disregard the revocation, at least for pressing needs. By defying his license revocation, however, the indigent debtor puts himself at the risk of incurring more fines, more court costs, and more litigation taxes that will be likely to render the restoration of his rights an even more improbable proposition. See Tenn. Code Ann. §§ 40-35-111(e), 55-50-504(a) (criminalizing and imposing fines on driving on a revoked license). If the purpose of such a scheme were simply to lock indigent defendants into an endless cycle of greater and greater debt, it could be said to serve that
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purpose well. But Purkey, to his credit, does not assert that the State of Tennessee or his Department has any legitimate interest in building inescapable debt traps for indigent Tennesseans. Purkey, rather, claims that his Department’s policies are in furtherance of debt collection. Toward that end, it is hard to say the policies are rationally calculated.
Purkey may respond that rational basis review permits even arguably counterproductive policies a presumption of constitutionality. Nothing about the case law, however, suggests that the Constitution’s tolerance for legislative or administrative self-sabotage is limitless. Cf. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 653 (1974) (Powell, J., concurring in the result) (arguing that policy would fail rational basis review because it is “either counterproductive or irrationally overinclusive”). The Supreme Court has made clear that, “even in the ordinary equal protection case calling for the most deferential of standards,” a law may be struck down if its substance is “so discontinuous with the reasons offered for it” that any pretense of rationality cannot be sustained. Romer, 517 U.S. at 632. That review includes considering whether, “in practical effect, the challenged classification simply does not operate so as rationally to further the” legitimate purpose professed. U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 537 (1973). There is reason to believe that taking away a driver’s license is not merely out of proportion to the underlying purpose of ensuring payment, but affirmatively destructive of that end—so much so that whether section 40-24-105(b) can lay any claim to rationality is open to serious question.
The court finds itself returning to the Sixth Circuit’s reminder that, under rational basis review, a state is free to “use[] a shotgun instead of a rifle to accomplish its legitimate end.” 624 F.3d at 748. The Sixth Circuit invoked that colorful aphorism to demonstrate that the state is free to resort to policies that are imprecise and overbroad. But the question unavoidably arises: Is it
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actually always rational to reach for the metaphorical shotgun, no matter the task at hand? This court previously suggested that taking a person’s driver’s license away to try to make him more likely to pay a fine is more like using a shotgun to treat a broken arm. Maybe it is more like using the shotgun to shoot oneself in the foot. However one wants to think about it, the aspect of the Sixth Circuit’s metaphor that is easy to miss is that, while the state is not required to use the best tool for the job, it still has to use a tool for the job. There is substantial reason to doubt that applying section 40-24-105(b) to indigent debtors makes any sense at all as a tool for collecting court debt.
Section 40-24-105(b), moreover, presents more than a garden variety case of overbreadth. Johnson, unlike this case, involved a sanction, disenfranchisement, that was initially imposed on all convicted felons, with no option to buy one’s way into an exception. See 624 F.3d at 745 (citing Tenn. Code Ann. § 40-29-202(b)–(c)). When a disenfranchised felon completed his sentence, he had the right to apply for re-enfranchisement, a process that again applied generally to the entire eligible population. Id. Two of the requirements for re-enfranchisement, however, were payment of restitution and child support obligations. Id. The scheme at issue in Johnson, then, was one that truly was targeted at all qualifying felons with outstanding payment obligations, and it sanctioned those who failed to pay only by forestalling their relief from a preexisting sanction that they had suffered. See Johnson, 624 F.3d at 751 (“First, and most fundamentally, the re-enfranchisement law at issue does not deny or abridge any rights; it only restores them.”).
Section 40-24-105(b), on the other hand, imposes a wholly new sanction and is exclusively targeted at defendants who have failed to pay their court debt for an entire year—that is to say, a group particularly likely to consist, in substantial part, of defendants who, like
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Thomas and Hixson, have suffered from a longstanding, persistent inability to pay. And the undisputed facts suggest that that longstanding, persistent inability usually continues after revocation. Purkey admits that, from July 1, 2012, to June 1, 2016, his agency revoked over 146,000 driver’s licenses for failure to pay fines, costs and/or litigation taxes. It restored fewer than 11,000. (Docket No. 64 ¶¶ 107–08.) In other words, well over 92% of the people whose driver’s licenses were revoked turned out not, in fact, to be people who could be coerced into payment. Can it really be said, then, that section 40-24-105(b) is a collection mechanism that, through its overbreadth, sweeps in some indigent people? The numbers would suggest that, to the contrary, taking away the driver’s licenses of indigent people is the core of what the statute does.10
Admittedly, the General Assembly has taken some recent steps to allow courts, in their discretion, to afford relief to defendants facing greater court debt than they can pay. Absent some actually articulated standard explaining when—if ever—a defendant is entitled to that relief, those mechanisms are inadequate for vindicating the constitutional interests here. The Griffin line of cases does not simply guarantee indigent defendants, in the relevant situations, the opportunity to appeal generally to the broad discretion of their sentencing court to alleviate their burden. Rather, the Court set forth certain situations in which a qualifying indigent is, as a matter of law, entitled to an exception from bearing a certain negative consequence that he could and would avoid if he were able to pay.11 See, e.g., Mayer, 404 U.S. at 198 (“We conclude that
10 Purkey would presumably respond that the success of section 40-24-105(b) is shown not by the small number of people who paid their debt after revocation, but by the people who, out of fear of losing their licenses, paid before a year was up. But those people, by definition, were capable of paying, unlike the debtors at issue here. They could just as easily be coerced by a mechanism with an exception for indigent debtors like Thomas and Hixson. 11 Indeed, it appears that the complaining parties in at least some of the post-Griffin cases may have already been denied just that kind of discretionary relief. See Williams, 399 U.S. at 237 (noting that
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appellant cannot be denied a ‘record of sufficient completeness' to permit proper consideration of his claims.” (emphasis added)). The only statute that offers anything comparable to that type of definite relief is the provision regarding the 180-day hardship exception. See Tenn. Code Ann. § 40-24-105(b)(3)(A) (“An order to stay the revocation of the license shall be granted if the court finds that the person would experience hardship from the revocation of the license and that other means of transportation are not readily available to the person.”) & -105(b)(3)(B) (“The court may enter a one-time stay for a period of not longer than one hundred and eighty (180) days.”). That provision, however, is expressly time-limited and not primarily focused on addressing indigence.
Every other opportunity for relief is left entirely to the discretion of the court. See Tenn. Code Ann. § 40-24-102 (“The several courts in which a cause is finally adjudged are authorized, either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to the county or state.”); Tenn. Code Ann. § 40-24-104(a) (“If the defendant . . . is unable to pay the fine . . . the court . . . may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay . . . .”); Tenn. Code Ann. § 40-24-105(h) (“The court is vested with the authority and discretion to order the issuance of a restricted driver license for the purposes specified in subdivision (b)(3)(A).”); Tenn. Code Ann. § 40-25-123(b) (“[T]he
Williams “petitioned the sentencing judge to vacate that portion of the order requiring that he remain imprisoned upon expiration of his one year sentence because of nonpayment of the fine and court costs” and quoting a portion of the sentencing court’s decision including discussion of prudential concerns), reversing People v. Williams, 41 Ill. 2d 511, 513 (1969) (noting, in case below, that the relevant sentencing statute provided that “the court may further order that upon non-payment of such fine, the offender may be imprisoned until the fine is paid” (emphasis added)); Bearden, 461 U.S. at 663, 673–74 (discussing parole hearing afforded in Bearden case), reversing Bearden v. State, 288 S.E.2d 662, 663 (1982) (explaining that a trial court’s revocation decision was reviewable, under Georgia law, only for abuse of discretion).
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presiding judge of a court of general sessions may suspend the court costs and the litigation tax . . . , for any indigent criminal defendant, as in the presiding judge’s opinion the equities of the case require.”).12 Most of those mechanisms, moreover, are not targeted at the specific issue of driver’s license revocations, but rather deal with the general assessment of fines, costs, and litigation taxes. Accordingly, a court’s exercise of its discretion may, and may well, be guided by factors wholly apart from the debtor’s indigence or his need to drive.
Tennessee courts have made clear that, when a court is, by statute, given discretion to grant a debtor relief from a particular type of court debt, that discretion includes the authority to deny relief, despite the debtor’s indigence. See Black, 897 S.W.2d at 683 (upholding denial of waiver of costs for indigent defendant); State v. Lafever, No. M2003-00506-CCA-R3CD, 2004 WL 193060, at *7 (Tenn. Crim. App. Jan. 30, 2004) (applying Black to discretion to waive fines). For example, the state courts have upheld the denial of a waiver of fines to a person who was earlier found to be indigent, based purely on the speculative possibility that, “[b]y the time [he was] required to begin paying the fines, his financial circumstances may have altered significantly, for instance, through an inheritance.” Lafever, 2004 WL 193060, at *7; see also State v. Ryan, No. E2013-02135-CCA-R3CD, 2014 WL 3611508, at *7 (Tenn. Crim. App. July 22, 2014) (affirming assessment of court costs against defendant who was found, twice, to be indigent, as within the court’s discretion). Thomas and Hixson do not seek to deprive Tennessee courts of their discretion regarding what a defendant should owe. They simply argue that, when it comes to one particularly harsh consequence of nonpayment, they are entitled to a more definite right to protection based on their indigence. Because Tennessee’s discretionary relief statutes provide no definite right to relief from revocation based on inability to pay, they are no
12 Emphasis added throughout.
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substitute for the type of protection required by the Griffin cases. The state cannot replace a right to relief with an opportunity merely to throw oneself upon the mercy of the court.
If the General Assembly concluded that the state should revoke the driver’s license of every person convicted of a felony or misdemeanor, then the Griffin line of cases would provide no obstacle. However, because Tennessee has “deem[ed] it wise and just that” some convicted persons be permitted to retain their licenses, “it cannot by force of its exactions draw a line” that imposes a greater sanction on a convicted person based solely on his indigence. Griffin, 351 U.S. at 23 (Frankfurter, J., concurring in judgment). Griffin and the cases applying it have “made clear that,” at least in criminal and quasi-criminal settings, “differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.” LaVallee, 389 U.S at 42. Nothing about the rational basis framework or Johnson itself relieves Tennessee from the “basic command that justice be applied equally to all persons.” Williams, 399 U.S. at 241. Accordingly, Purkey’s Motion to Dismiss, which is premised on the argument that the plaintiffs’ arguments fail as a matter of law, will be denied as to Count I.
d. Evidentiary Basis for Granting Summary Judgment Simply concluding that Purkey is not entitled to dismissal of the plaintiffs’ claims as a matter of law leaves open the question of whether either party is entitled to summary judgment. Thomas and Hixson have set forth a sound theory of the constitutional protection to which they are entitled, based on longstanding Supreme Court precedents and well-recognized principles regarding the solicitude owed to indigent people in the criminal justice system. Whether that theory justifies the holding they seek, however, depends on the facts. Purkey reminds the court repeatedly—and correctly—that constitutional case law has recognized no fundamental right to
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drive a motor vehicle. Conceding as much, the plaintiffs have not framed their challenge as about the right to drive in the abstract, but about the practical effect of losing that right on other, sometimes profoundly important interests. Specifically, the plaintiffs argue that, in Tennessee, losing one’s license has substantial destructive effects on both (1) a person’s ability to obtain basic self-sufficiency and (2) the government’s ability to recoup its debts. The court, therefore, must survey the undisputed facts before it to determine if the plaintiffs have so conclusively established that premise—or Purkey so conclusively refuted it—that summary judgment would be proper.
i. Judicial Notice of Importance of Driving in Tennessee. The plaintiffs first urge the court to take judicial notice, generally, of the centrality of motor vehicle travel to life in Tennessee. As the court has already discussed, taking at least some judicial notice to that effect is proper. Rule 201 of the Federal Rules of Evidence permits a court, either by motion of a party or on its own motion, to “judicially notice a fact that is not subject to reasonable dispute because it” either “(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Judicial notice permits a court to acknowledge certain indisputable foundational facts about life in a jurisdiction, such as the region’s geography, see Tucker v. Outwater, 118 F.3d 930, 935 (2d Cir. 1997), its recurring weather conditions, see Stephan v. Transp. Ins. Co., 140 F. App’x 340, 341 (3d Cir. 2005), or widely known demographic facts about its workforce, see Caulfield v. Bd. of Educ. of City of N.Y., 486 F. Supp. 862, 885 (E.D.N.Y. 1979), aff’d, 632 F.2d 999 (2d Cir. 1980). Where appropriate, judicial notice may extend to indisputable realities of an area’s economic life—for example, that a state or region lacks a certain industry, see United States v. Ramirez, 910 F.2d 1069, 1071 (2d Cir. 1990), or that a particular consumer good
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is widely available, see United States v. Various Articles of Obscene Merch., Schedule No. 2102, 709 F.2d 132, 137 (2d Cir. 1983).
By the same principle, a court is permitted to take judicial notice of commonly known and indisputable facts about a city or region’s transportation infrastructure. See, e.g., Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1370 (11th Cir. 1998) (taking judicial notice that “Atlanta is home to Hartsfield Atlanta International Airport, one of the busiest airports in the country”). Indeed, as Thomas and Hixson point out, courts have, where appropriate, specifically taken judicial notice of the necessity of motor vehicle travel for certain work or life activities. See Southerland v. St. Croix Taxicab Ass’n, 315 F.2d 364, 367 (3d Cir. 1963) (“The District Court was entitled to take judicial notice of the fact, as do we, that the Alexander Hamilton Airport is located in a rural part of St. Croix, some miles from the hotels and towns of the island and that it is served by no regular public transportation facilities.”); United States v. Lopez, No. 05-CR-593, 2007 U.S. Dist. LEXIS 26170, at *13 n.14 (E.D. Pa. Mar. 26, 2007) (“The Court takes judicial notice that the motel in question is in King of Prussia, Pennsylvania, approximately 20 miles outside of Philadelphia, in an area that is not readily served by public transportation and is otherwise generally inaccessible without a car.”); cf. Susman v. N. Star Tr. Co., 30 N.E.3d 622, 628 (Ill. App. Ct. 2015) (“This court, which is located in Chicago, Cook County, may take judicial notice of the fact that Lake County is adjacent to Cook County and that many people commute every day from Lake County to work in Chicago.”). Of particular relevance to this case, the Supreme Court itself appears to have had little hesitation in observing that “[a]utomobile travel . . . is a basic, pervasive, and often necessary mode of transportation,” Prouse, 440 U.S. at 662, or in referring to driving as “a virtual necessity for most Americans.” Wooley, 430 U.S. at 715.
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“[C]aution must be used” in taking judicial notice under Rule 201, in part because judicial notice can have the effect of “depriv[ing] a party of the opportunity to use rebuttal evidence, cross-examination, and argument to attack” the assertion at issue. Countrywide Home[] Loans, Inc. v. McDermott, 426 B.R. 267, 273 (N.D. Ohio 2010) (quoting Am. Prairie Constr. Co. v. Hoich, 560 F.3d 780, 796 (8th Cir. 2009)). The court notes, however, that no such deprivation of the chance to refute a judicially noticed fact has taken place here. Indeed, Purkey has been given ample opportunity to dispute the importance of driving to life in Tennessee, and, while he has raised a number of evidentiary objections, he has offered little to nothing that would undermine the plaintiffs’ factual premise. For example, in their Statement of Undisputed Material Facts, Thomas and Hixson, citing third-party research, posit that, “[i]n Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation.” (Docket No. 64 ¶ 95.) Purkey, in response, objects on the basis of hearsay but does not deny the fact asserted. (Id.) Thomas and Hixson add that, “[i]n Nashville, Knoxville, and Chattanooga, more than two thirds of working-age residents lack access to public transportation.” (Id. ¶ 96.) Again, Purkey raises only a hearsay objection, with neither a denial of the plaintiffs’ factual assertion nor any proffered reason to doubt its general accuracy. (Id.) Thomas and Hixson then claim that “93.4% of Tennessee residents drive to work.” (Id. ¶ 97.) This time, Purkey raises two evidentiary objections—but again, he makes no quarrel with the facts. (Id.) This pattern continues for several pages, with Purkey objecting even to such undeniably common sense statements as “Many indigent people who owe Court Debt and whose licenses have been revoked under the Statute still need to drive in order to get to work, school, or medical appointments.” (Id. ¶ 106; see id. ¶¶ 94–106.) Any factual basis for Purkey’s resistance to the plaintiffs’ positions, however, is conspicuously absent.
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None of this is to give short shrift to Purkey’s evidentiary objections—which the court will address in more detail below—but to note that, if Purkey has any ground on which he actually disputes the importance of driving in Tennessee, he has had ample opportunity to raise it. Therefore, while the court will exercise the level of caution appropriate under Rule 201, it will do so while noting that Purkey and his counsel have certainly not been blindsided by this issue, nor have they been deprived of chances to make a case to the contrary.
With the foregoing principles in mind, the court takes judicial notice of the following. First, the court judicially notices that the public transportation available in Tennessee is widely insufficient to provide an adequate substitute for access to private motor vehicle transportation. Second, the court judicially notices that the services, businesses, homes, and workplaces throughout Tennessee are so geographically diffuse that navigating life in the state wholly on foot is impracticable for all but perhaps a few Tennesseans. Third, the court judicially notices that a number of obstacles prevent non-motorized transportation, such as bicycles, from providing an adequate alternative to driving in Tennessee, including (1) the aforementioned geographically diffuse pattern of development; (2) the need to travel on interstates and highways; (3) safety concerns associated with using non-motorized travel in areas without paths dedicated to that purpose; (4) the lack of such dedicated paths on numerous important roads within the state; and (5) the fact that many Tennesseans face physical limitations that would not prevent them from driving but that would sharply limit their use of a bicycle or other human-powered mode of transportation.
Based on its judicial notice of these aforementioned facts, the court concludes that it is beyond dispute that, at least as a general proposition, the cities, towns, and communities of Tennessee are pervasively structured around the use of motor vehicles. Anyone who doubts that
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premise is welcome to attempt to run a day’s worth of errands in a rural Tennessee county with no car and very little money. The centrality of motor vehicle travel is, moreover, not solely a rural problem. Even the relatively dense city of Nashville, where the court sits, is deeply reliant on motor vehicle transport. If any city in this jurisdiction could be expected to be reasonably navigable without driving, it would be Nashville—and the court takes judicial notice that, to the contrary, Nashville is a city where motor vehicle travel is an essential part of ordinary life, particularly for anyone seeking to maintain or build economic self-sufficiency.
There are, of course, limits to what the court can judicially notice. The court cannot, for example, take judicial notice of the more specific statistical claims offered by Thomas and Hixson, nor can the court ascribe absolute universality to the general facts of which the court has taken judicial notice. There is no reason, however, for the court to engage in the preposterous fiction that the question of whether driving is central to life in Tennessee is shrouded in mystery. This is a state of roads, not footpaths—and those roads, for the most part, are filled with private and commercial vehicles, not bicycles and public buses. The court is permitted to acknowledge as much.
ii. Stipulations. Indeed, the parties’ stipulations—though worded cautiously—support the court’s conclusion. Purkey stipulates, for example, that, “[f]or many adult residents of Tennessee, the ability to drive is an important aspect of daily life.” (Docket No. 40 ¶ 41.) He further stipulates that “[p]ublic transportation is not available in some parts of Tennessee.” (Id. ¶ 42). Although those stipulations, in a vacuum, may be frustratingly vague and euphemistic, the court’s permissible consideration of background facts about life in the state brings the agreedupon premises more sharply into focus. No testimony is required for the court to understand that driving is “an important aspect of daily life,” because it is how Tennesseans get to work, school,
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supermarkets, doctors’ offices, hospitals, religious services, job interviews, charitable organizations, polling places, and community activities, among other destinations. Nor is testimony required for the court to know that the “some parts of Tennessee” without public transportation include more than the bottom of the Cumberland River or the top of Mount Le Conte. The areas without public transportation, or with wholly inadequate public transportation, include the homes of many Tennesseans whose rights and desires to engage in the activities of life are no less than those of Tennesseans in the state’s city centers. The parties’ stipulations, accordingly, support a holding that the loss of one’s driver’s license works a substantial hardship on the former license holder’s capacity for self-sufficiency, such that a license revocation would be counterproductive to fostering an indigent debtor’s ability to pay his debts.
iii. Census Data and Brookings Institution Report. The stipulations and judicial notice available provide a great deal of support for the general conclusion that driving is central to everyday life and personal self-sufficiency in Tennessee. General conclusions, however, can only take the court so far. Thomas and Hixson have offered a number of more detailed supporting facts, to which Purkey objects primarily, if not exclusively, on evidentiary grounds. The court, therefore, must consider the degree to which it can consider those supporting facts on the motions for summary judgment.
Thomas and Hixson have offered the declaration of one of their attorneys, Edward Krugman, purporting to authenticate and summarize supporting evidence from (1) a 2011 Brookings Institution report entitled Missed Opportunity: Transit and Jobs in Metropolitan America (“Brookings Report”)13; and (2) census data regarding the percentage of Tennessee
13 Available at https://www.brookings.edu/research/missed-opportunity-transit-and-jobs-in-metropolitanamerica/.
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residents who commute to work.14 (Docket No. 43.) Purkey objects to both sources on the grounds that Krugman, as an attorney for the plaintiffs, is not an appropriate authenticating witness and that the Brookings Report and the census figures are hearsay.
Purkey is correct that, insofar as there is a reasonable dispute about the authenticity or credibility of sources, a lawyer for one of the parties would not be an appropriate witness on the matter—at least if that lawyer also planned to appear at trial. See Tenn. Sup. Ct. R. 8, RPC 3.7 (forbidding an attorney to be both advocate and witness at trial unless pursuant to a particular exception); see also Local R. 83.01(e)(4) (“The standard of professional conduct of the members of the bar of this Court shall include the current Tennessee Code of Professional Responsibility, Tenn. Sup. Ct. R. 8.”). That does not mean, however, that Krugman is forbidden from noting the existence of the census data and Brookings Report. The court is capable of taking judicial notice of the fact that “http://www.brookings.edu” and “http://www.census.gov” are the URLs of, respectively, the Brookings Institution and the U.S. Census Bureau, and the sources that Krugman has cited are available on those websites. Krugman’s citation to those sources, therefore, is no different from merely mentioning them in a brief and poses no problem under the Rules of Professional Conduct.
The permissibility of Krugman’s declaration, of course, does not resolve Purkey’s hearsay objections, and, indeed, the plaintiffs concede that at least the Brookings Report is hearsay. Purkey is mistaken, however, that a hearsay objection is enough to categorically insulate him from addressing the facts at issue. Purkey relies on the Sixth Circuit’s decision in Sperle v. Michigan Department of Corrections for the proposition that “[a] party opposing a motion for
14 Available at U.S. Census Bureau, Commuting (Journey to Work), https://www.census.gov/topics/employment/commuting/data.html. The court notes that the URL for accessing commuter data has apparently changed since these motions were originally briefed, but this URL appears, at least as of late March 2018, to contain the same or similar figures.
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summary judgment cannot use hearsay or other inadmissible evidence to create a genuine issue of material fact.” 297 F.3d 483, 495 (6th Cir. 2002) (citing Weberg v. Franks, 229 F.3d 514, 526 n.13 (6th Cir. 2000)). Sperle, however, was not decided under the current version of Rule 56. As the Sixth Circuit has more recently explained, the appropriate focus under Rule 56, as since amended, is on the admissibility of a fact at trial, not necessarily the admissibility of the fact in the specific form presented at the time of the summary judgment motion:
As amended in 2010, Federal Rule of Civil Procedure 56 provides that parties asserting a genuinely disputed fact need only “cit[e] to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). It then permits a party to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Once an objection is properly made, the proponent must “show that the material is admissible as presented or . . . explain the admissible form that is anticipated.” Mangum v. Repp, 674 F. App’x 531, 536–37 (6th Cir. 2017) (quoting Fed. R. Civ. P. 56(c), advisory committee’s note to 2010 amendment); see also Mount Vernon Fire Ins. Co. v. Liem Constr., Inc., No. 3:16-CV-00689, 2017 WL 1489082, at *3 (M.D. Tenn. April 26, 2017) (Crenshaw, J.) (acknowledging that the court, on a summary judgment motion, may consider evidence presented in hearsay form if the evidence can be reduced to admissible form at trial); Wilson v. Stein Mart, Inc., No. 3:15-CV-01271, 2016 WL 4680008, at *2 (M.D. Tenn. Sept. 7, 2016) (Nixon, S.J.) (same); Jeffrey W. Stempel et al., 11-56 Moore’s Federal Practice - Civil § 56.91 (2018) (“Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . , the material may be presented in a form that would not, in itself, be admissible at trial.”); Charles Alan Wright & Arthur R. Miller et al., 10A Fed. Prac. & Proc. Civ. § 2721 (4th ed.) (“The court and the parties have great flexibility with regard to the evidence that may be used in a Rule 56 proceeding.”); cf. Celotex, 477 U.S. at
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324 (“We do not mean that the nonmoving party must produce evidence in a form that would be
admissible at trial in order to avoid summary judgment.”).
Purkey’s objections premised on the fact that the Brookings Report is hearsay are not
objections that the facts therein “cannot be presented in a form that would be admissible in evidence,” as required by Rule 56(c)(2).15 The court notes, however, that lodging a simple
hearsay objection is consistent with the ordinary practice of most litigants in this district.
Addressing evidentiary objections on summary judgment through such a procedure is frequently
sufficient, either because the ultimate evidentiary issue at trial is obvious or because reliance on
the specific fact at issue is unnecessary for resolution of the relevant motion. The pending
summary judgment motions, however, do not yield such an easy resolution. Accordingly, the
court is inclined to hold those motions in abeyance with regard to Count I, pending either (1) a
more cooperative effort between the parties at reaching reasonable, agreed-upon stipulations
regarding the underlying facts or (2) the filing of supplemental briefs on whether the facts cited
by the plaintiffs and found in the Brookings Report, or some rough equivalent or substitute, can
be presented in a form that would be admissible at trial.
Thomas and Hixson do not, after all, ask the court to accept the entire Brookings Report,
in toto, as indisputable. Rather, they identify a few simple aspects of the authors’ conclusions—
mostly straightforward statistical claims about Tennessee communities—that are relevant to this
15 As Thomas and Hixson note, it is debatable whether Purkey’s practice of lodging evidentiary objections alone, without addressing the facts asserted, follows the letter of the court’s local rules. Under Rule 56.01(c), “[a]ny party opposing the motion for summary judgment must respond to each fact set forth by the movant by either (i) agreeing that the fact is undisputed; (ii) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (iii) demonstrating that the fact is disputed.” Local R. 56.01(c) (emphasis added). Moreover, “[e]ach disputed fact must be supported by specific citation to the record.” Id. Purkey, however, has not taken any position on whether he disputes the underlying facts, nor does he rely on specific citations to the record in his responses. In any event, because the court will order supplemental stipulations and briefing on this issue, it need not determine whether Purkey fully complied with Rule 56.01(c).
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case. (See Docket No. 64 ¶¶ 94–96.) The Brookings Report, in turn, is fairly transparent about its methodology, and many of the sources on which it relies are publicly available, such as transit authorities’ own route and schedule information. See Brookings Report at 5–6, 29–34. It is not difficult, then, to foresee how the facts cited by the plaintiffs—or comparable facts conveying similarly supportive background information about specific Tennessee communities—could be admissible at trial, either through an author of the Brookings Report, if available, or some other knowledgeable witness. Accordingly, if the parties truly are unable to agree upon the facts necessary for full consideration of the plaintiffs’ claims, the court will permit Thomas and Hixson to file supplemental affidavits and statements of undisputed fact establishing how, if at all, they would anticipate introducing specific factual support regarding the necessity of driving to Tennesseans.
Further briefing may also be helpful on the census data as currently presented, if the parties are unable to agree on what that data says. With regard to the raw data itself, Purkey’s hearsay objection is unavailing, because Rule 201 generally permits the court to take judicial notice of “public records and government documents available from reliable sources on the Internet.” U.S. ex rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). Official publications of public authorities, moreover, are self-authenticating under Rule 902(5) of the Federal Rules of Evidence. See Fair Hous. Ctr. of Sw. Mich. v. Hunt, No. 1:09-CV-593, 2011 WL 710666, at *3 (W.D. Mich. Feb. 23, 2011) (“Publications of the U.S. Bureau of Census are self-authenticating . . . .”). Although parties might dispute the analysis of census figures or even the methodology by which a census was conducted, the court knows of no reasonable basis to dispute that the U.S. Census Bureau’s published data is itself an accurate representation of the census or censuses taken.
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Thomas and Hixson, however, do not rely solely on the data in its raw form, but also on their compilation and tabulation of figures from that data to represent the percentages of residents in a number of Tennessee metropolitan areas who drive to work. (Docket No. 43 ¶¶ 6– 10.) The plaintiffs argue that their tabulations are admissible under Rule 1006 of the Federal Rules of Evidence, which permits a party to use “a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Alternatively, the plaintiffs suggest that their tabulations can be considered as a Rule 611(a) pedagogical device. See United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998). Given the voluminous nature of the census data, it seems to the court that a Rule 1006 summary would be appropriate. “[S]ummaries admitted as evidence under Rule 1006,” however, “must fairly represent and be taken from underlying documentary proof.” Gomez v. Great Lakes Steel Div., Nat. Steel Corp., 803 F.2d 250, 257 (6th Cir. 1986). The court’s consideration of this matter would therefore be aided by Purkey’s setting aside his evidentiary gamesmanship and weighing in on whether the plaintiffs’ summary is accurate. In other words, the court invites Purkey to check the plaintiffs’ math rather than looking for ways to avoid it. If, then, the parties are truly unable to reach an agreement regarding the plaintiffs’ numbers, the court will require additional briefing on the degree to which the numbers presented in paragraph 10 of Krugman’s declaration are admissible as a Rule 1006 summary or, in the alternative, a Rule 611(a) pedagogical device. While Purkey is free to lodge or reiterate any evidentiary objections he likes, he will also be required to take an affirmative position on the accuracy of the plaintiffs’ calculations, with an adequate and thorough explanation of any grounds for disputing those calculations, or risk the court’s taking the plaintiffs’ calculations as conceded. The plaintiffs, in
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turn, will be ordered to make good faith efforts to assist Purkey’s counsel in understanding the plaintiffs’ tabulation methodology.
Counsel for the parties can, and presumably will, use their best litigation judgment regarding how to go about the stipulations and briefing ordered. The court notes, however, that it fails to see why any party would wish to draw these proceedings out by being intransigent or willfully obtuse about the basic fact that driving is a central part of ordinary life for most adult Tennesseans who are capable of operating a motor vehicle, particularly those who wish to be economically self-sufficient. The court has taken judicial notice of that fact generally, and it has little doubt that additional facts are discoverable and admissible that would provide more detailed support for the general proposition. It is difficult to imagine what would be gained by holding a trial solely for the purpose of hauling in witnesses to authenticate studies and confirm simple calculations, all to form an evidentiary record in support of a premise that any person who lives in Tennessee can see is true. It would seem to the court that resolving this case expeditiously would be better furthered by agreeing upon the basic, indisputable facts and focusing on the area of the parties’ actual meaningful disagreement: the substance of the governing constitutional law. In any event, for the aforementioned reasons, the court will hold the parties’ motions for summary judgment in abeyance regarding Count I, pending the requested supplemental stipulations and briefing, which the court will outline in greater detail in the accompanying order.
2. Count III a. James v. Strange
Because Count III, like Count I, involves the Equal Protection Clause, the court will turn to it next. Count III targets the same features of Tennessee’s system as Count I, but from a
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different angle. Relying largely on the Supreme Court’s decision in James v. Strange, 407 U.S. 128, Thomas and Hixson argue that section 40-24-105(b) denies equal protection by subjecting people holding court debt to a significantly harsher collection and enforcement scheme than Tennessee allows with regard to people holding private debt. In other words, while Count I compares the difference between the law’s treatment of indigent court debtors and non-indigent court debtors, Count III turns to the difference between the law’s treatment of court debtors and its treatment of private debtors. Much of Purkey’s argument follows the same path he took with Count I. He argues that this scheme is governed by rational basis review, which the state’s laws should survive.
Strange involved a Kansas statutory scheme for recouping amounts expended by the state on counsel and legal services provided to indigent criminal defendants pursuant to the state’s obligations under Gideon v. Wainwright, 372 U.S. 335 (1963). Strange, 407 U.S. at 128. Any time a sum was expended, it was promptly recorded as a debt of the defendant. That debt “bec[ame] a lien on the real estate of defendant” and could “be executed by garnishment or in any other manner provided by the Kansas Code of Civil Procedure.” Id. at 131. The defendant debtor, however, was not “accorded any of the exemptions provided by [the Kansas Code of Civil Procedure] for other judgment debtors except the homestead exemption.” Id.
The Strange court considered Kansas’ scheme pursuant to a deferential standard, looking only to “whether [the law] is based on assumptions scientifically substantiated.” Id. at 133 (quoting Roth v. United States, 354 U.S. 476, 501 (1957) (Harlan, J., concurring in the result)). Indeed, even the Johnson majority has conceded that Strange’s “text appeared to apply rational basis review.” 624 F.3d at 749. Under that standard, the Court struck the scheme down, observing that the state may not “impose unduly harsh or discriminatory terms merely because
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the obligation is to the public treasury rather than to a private creditor.” Id. at 138. The Court
took particular issue with the fact that, by eliminating almost all exemptions, Kansas had
subjected criminal defendant debtors to a regime that struck at their core resources. The Court
explained that the protections that had been removed were ones intended to ensure that even
debtors facing an overwhelming civil judgment would not have their resources wholly wiped out
by debt collection efforts. For example:
Of the [exemptions available to a civil judgment debtor], none is more important to a debtor than the exemption of his wages from unrestricted garnishment. . . . Kansas has . . . perceived the burden to a debtor and his family when wages may be subject to wholesale garnishment. Consequently, under its code of civil procedure, the maximum which can be garnished is the lesser of 25% of a debtor’s weekly disposable earnings or the amount by which those earnings exceed 30 times the federal minimum hourly wage. No one creditor may issue more than one garnishment during any one month, and no employer may discharge an employee because his earnings have been garnished for a single indebtedness.
Id. at 135–36. The Court recognized that “deny[ing] protections such as these to the once
criminally accused is to risk denying him the means needed to keep himself and his family
afloat.” Id. at 146.
Strange, unlike Griffin, does not have a novella’s worth of later Supreme Court opinions
explaining precisely what the lower courts should construe it to mean. The Court did revisit the
issue, however, in Fuller v. Oregon, 417 U.S. 40 (1974). Oregon, like Kansas and a number of
other states, had adopted a statutory scheme pursuant to which the state sought to recover the
costs of counsel from defendants—in Oregon’s case, only convicted defendants—who had been
indigent at the time of their prosecutions and had relied on state-funded appointed counsel. Quite
unlike the Kansas scheme at issue in Strange, however, the Oregon recoupment statutes
categorically applied only to a person who “[was] or [would, in the future] be able to pay” the
amounts owed. 417 U.S. at 45 (quoting Or. Rev. Stat. § 161.665(3)). As interpreted by the
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Oregon courts, “no requirement to repay [could] be imposed if it appear[ed] at the time of sentencing that ‘there [was] no likelihood that a defendant’s indigency [would] end.” Id. (quoting State v. Fuller, 504 P.2d 1393, 1397 (1973)). The Oregon statute, therefore, was “quite clearly directed only at those convicted defendants who [were] indigent at the time of the criminal proceedings against them but who subsequently gain[ed] the ability to pay the expenses of legal representation.” Id. at 46. As the Court put it:
Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no ‘manifest hardship’ will result. The contrast with appointment-of-counsel procedures in States without recoupment requirements is thus relatively small: a lawyer is provided at the expense of the State to all defendants who are unable, even momentarily, to hire one, and the obligation to repay the State accrues only to those who later acquire the means to do so without hardship. Id. (footnote omitted). The Court, applying Strange, upheld Oregon’s statute. In so doing, the Court reiterated that what it had found objectionable about Kansas’ scheme was that the “elimination of the exemptions normally available to judgment debtors ‘embodie[d] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.’” Fuller, 417 U.S at 47 (quoting Strange, 407 U.S. at 142.) Concurring in the judgment, Justice Douglas stressed that the reason the statute survived was that it had “been stringently narrowed.” 417 U.S. at 59 (Douglas, J., concurring in the judgment).
b. Section 40-24-105(b)’s Protection of Indigent Debtors Strange does not require that all debt be recouped by the same mechanisms, or even by equally effective mechanisms. See Strange, 407 U.S. at 138 (“We recognize, of course, that the State’s claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not
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be identical.”). What Strange does provide, however, is a firm command that a state’s uniquely harsh treatment of a class of indigent debtors cannot be carried out in “such discriminatory fashion” that it “blight[s] . . . the hopes of indigents for self-sufficiency and self-respect.” Id. at 142–43. The question, then, is whether that is the case here.
In Tennessee, fines, costs, and litigation taxes can be collected through the same basic mechanisms as a civil judgment. See Tenn. Code Ann. § 40-24-105(a), (c), (f). Kansas also took its system of ordinary civil collections as its baseline, but ran afoul of the Constitution by subtracting a number of protections that would have been uniquely necessary for the very indigent or recently indigent debtors to which its statute applied. Tennessee took a different route, albeit one that, Thomas and Hixson argue, took it to much the same destination. Whereas Kansas took away protections from its ordinary scheme, Tennessee heaped on additional tools of coercion—most notably, the loss of a driver’s license. While the structure of the schemes is different, the effect is the same: one particular type of debtor is singled out for a regime uniquely capable of driving those debtors into, or further and more inextricably into, poverty.
Indeed, acknowledgment of the unique constitutional hazards of such a system can, as the court has noted, be found in the opinion of the Johnson Sixth Circuit majority. Johnson distinguished the Kansas debt scheme from Tennessee’s re-enfranchisement scheme on the ground that Johnson involved a “mere ‘statutory benefit,’” whereas Strange implicated the debtor’s ability to “support[] himself and his family.’” Johnson, 624 F.3d at 749 (quoting Harvey, 605 F.3d at 1079; Strange, 407 U.S. at 135). That distinction, the Johnson majority explained, was why Strange, despite facially being a case of rational basis review, in fact applied a somewhat more demanding consideration of the factors involved.
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Here, the statute at issue, like the one in Johnson, threatens serious financial harm to those who run afoul of it. The court does not need to repeat its lengthy discussion above to establish that taking a person’s driver’s license away is, like Kansas’ scheme of unlimited garnishment, a threat to the debtor’s basic subsistence. Ultimately, then, the formal differences between Count I and Count III give way to substantial practical overlap. Although the theories undergirding each differ, both hinge on just how severe a sanction the revocation of a license is and just how greatly it harms the debtor’s basic subsistence or ability to build economic selfsufficiency. For that reason, the court will likewise deny Purkey’s motion to dismiss with regard to Count III and hold the motions for summary judgment in abeyance pending the requested supplemental stipulations and briefing.
3. Count II In Count II, Thomas and Hixson challenge not the substance of the state’s revocation scheme, but the way it is carried out—specifically, that a person facing revocation is not afforded notice and an opportunity to contest the facts underlying the TDSHS’s revocation before that revocation goes into effect. Purkey does not dispute that the state’s revocation of a person’s driver’s license requires it to afford the minimal protections of due process. Purkey argues, instead, that the state’s procedural due process obligation is satisfied by a combination of (1) the original due process afforded at the time of the debtor’s conviction, (2) the fact that TDSHS sends notices informing debtors of their revocations, and (3) that a debtor who believes that his license was revoked in error because he had, in fact, paid his court debt can seek a review of his records from TDSHS. A driver’s license, once issued, is “not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539 (1971)
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(citing Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969); Goldberg v. Kelly, 397 U.S. 254 (1970)). What due process requires, however, varies depending on the nature of the scheme at issue. Even in a case where all involved agree that a person was entitled to due process, there may still be disagreement about “how much process is due.” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015). Determining precisely what process a person is entitled to in a particular situation requires the consideration of a number of factors:
[1] the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation[;] . . . [3] the probable value, if any, of additional or substitute procedural safeguards; and [4] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 559 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The Supreme Court’s cases in this area establish that a driver facing suspension or revocation of his license is entitled to a pre-deprivation hearing in some—but not all—situations. In Bell v. Burson, the Supreme Court concluded that an adequate pre-deprivation hearing was required under a Georgia law pursuant to which “the motor vehicle registration and driver’s license of an uninsured motorist involved in an accident” was “suspended unless he post[ed] security to cover the amount of damages claimed by aggrieved parties in reports of the accident.” 402 U.S. at 535–36. The state allowed a motorist an administrative hearing prior to the suspension, but that hearing did not consider issues of liability or fault. Id. at 536. Accordingly, an uninsured driver who was wholly innocent in an accident could nevertheless have his license suspended for failing to post bond in the amount of the claimed damages of another party involved—indeed, possibly the party who was actually at fault—without ever having a hearing in which he could deny his liability. Id. The Court held that the statute deprived a driver of due process and that, although a driver was not entitled to a full determination of liability before
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facing a requirement to post bond or face suspension, he was at least entitled to a “determination whether there [was] a reasonable possibility of judgments in the amounts claimed being rendered against” him. Id. at 540.
In Dixon v. Illinois, however, the Supreme Court made clear that a pre-suspension hearing is not required in all situations. 431 U.S. at 115. Under the scheme at issue in Dixon, Illinois had “established a comprehensive system of assigning ‘points’ for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records.” Id. at 107. Pursuant to the state’s regulations, a driver faced suspension or revocation, without a pre-action hearing, if he amassed a qualifying number of points. Id. at 108. The state did, however, provide for notice concurrent with the revocation or suspension, followed by a right to a full evidentiary hearing on the state’s decision. Id. at 109. Applying the aforementioned Eldridge factors, the Court concluded that no pre-deprivation hearing was required. The court explained that, in light of the fact that Illinois’ scheme permitted exceptions based on hardship, the private interest at issue was “not so great as to require [the Court] ‘to depart from the ordinary principle [that] something less than an evidentiary hearing is sufficient prior to adverse administrative action.’” Id. at 113 (quoting Mathews, 424 U.S. at 343). Moreover, although it was possible that a person might face an incorrect suspension due to a clerical error, the risk of an erroneous deprivation was ultimately “not great,” because “revocation decisions [were] largely automatic.” Id. Finally, the Court noted the “substantial public interest” in ensuring the administrative efficiency of a scheme dedicated to “safety on the roads and highways, and in the prompt removal of a safety hazard.” Id. at 114. The Court concluded that it was this last factor, the presence of a public safety issue, that particularly distinguished the case from Bell. Illinois’ denial of a pre-deprivation hearing was permissible, in part, because the statute at issue was
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“designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others.” Id. at 115.
Purkey urges this court to treat Dixon as wholly determinative of TDSHS’s obligations at issue in this case. That argument, however, ignores the fact that the factor that the Supreme Court appears to have considered most important in Dixon is entirely absent here. The scheme in Dixon was targeted at drivers who had amassed traffic offenses that could give rise to a reasonable inference that they were significantly more likely than the average driver to pose a risk to public safety if allowed on the road. In contrast, a person can find himself facing a section 40-24-105(b) revocation despite a spotless, or even exemplary, driving record. Despite Purkey’s repeated attempts to ground Tennessee’s revocation scheme in the state’s power to police the safety of its highways, he has demonstrated no basis for concluding that a driver who cannot pay his court debt is any more of a risk to the drivers around him than a driver who can. Section 4024-105(b) is not about safety; it is about payment. In that regard, it is more like the scheme at issue in Bell. Ultimately, though, Tennessee’s policy of revoking driver’s licenses based on court debt does not analogize perfectly to the laws at issue in either case. Whether a driver facing revocation is entitled to a pre-deprivation hearing must depend on a consideration of the particular rights, interests, and underlying evidentiary issues implicated here.
The facts and briefing currently before the court leave a certain amount of ambiguity with regard to how, exactly, TDSHS processes initial revocations for failure to pay court debt. In his Reply in support of his Motion for Summary Judgment, Purkey writes:
Plaintiffs are incorrect that the State revokes driver’s licenses “with no notice.” Although Section 105(b) does not require pre-revocation notices, the Commissioner is required to send notice at the time of revocation. See Tenn. Code Ann. § 55-50-504(h). Further, such “revocation . . . shall not take effect until ten (10) days after notice has been sent to the last known address of the driver.” Id.
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(Docket No. 88 at 18–19.) This language, as far as the court can tell, states that, while section 4025-105 does not itself require pre-revocation notice, another statute, section 55-50-504(h) does require notice, after which the revocation cannot “take effect” for ten days. Under that statute:
Notwithstanding any other law to the contrary, revocation or suspension of a license shall not take effect until ten (10) days after notice has been sent to the last known address of the driver. The notice requirement in this subsection (h) shall not apply to a driver whose license has been revoked or suspended by a court of competent jurisdiction or who has surrendered the license to the court. Id. The relevant section of Purkey’s Reply, however, does not actually cite to any portion of either party’s Undisputed Material Facts or Responses thereto in order to support the contention that TDSHS actually does wait ten days for its revocations to go into effect. The crux of this discrepancy appears to be Purkey’s distinction between when his agency changes a driver’s “status” and when the revocation of the license is “effective.” Purkey admits that “the Department revokes a person’s driver’s license on the same day that it receives notification of non-payment from the court.” (Docket No. 64 ¶ 28.) However, Purkey also claims that, “while revocation is effective as of the date that notification is [sent] to the driver by the Department, the Department does not change the status of the driver’s license for a period of 10 days in order to allow the driver to receive notification from the Department.” (Docket No. 64 ¶ 28.) This distinction, though, does not appear to reflect what Purkey now admits he is bound to do pursuant to section 55-50-504(h), which makes no mention of the “status” of the driver’s license, only when the revocation “shall . . . take effect.” In any event, the court need not dwell too long on this confusion, because Count II survives, for now, regardless. Whether TDSHS actually waits ten days for a revocation to take effect might become a key issue, if Thomas and Hixson ultimately fail to prevail on Counts I and III. If they do prevail on Counts I and III, however, the fact that they have not been afforded
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procedural due process will be a foregone conclusion, because they will have been, as a matter of law, entitled to an opportunity for a hearing that they have not been afforded. Moreover, the question of what type of hearing might be necessary will inevitably hinge on the outcome of Counts I and III, because the substantive nature of the rights and facts at issue affects the application of the Eldridge factors. The court, accordingly, will deny Purkey’s motion to dismiss with regard to Count II, and will add, to its requested briefing, that Purkey clarify TDSHS’s practices regarding whether a driver’s license is considered revoked for the ten days following the agency’s sending a notice letter. The motions for summary judgment will be held in abeyance in full. C. Class Certification
Thomas and Hixson seek certification of a class defined as “[a]ll persons whose Tennessee driver’s licenses have been or will be revoked pursuant to the Statute and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances.” (Docket No. 1 ¶ 93.) Purkey argues that Thomas and Hixson are not entitled to certification of their class for five reasons: (1) they have failed to produce appropriate evidence sufficient to meet their burden under Rule 23; (2) they cannot satisfy the numerosity requirement because they have not demonstrated what portion of people with revoked licenses are indigent; (3) they cannot satisfy the commonality requirement because the population of drivers with revoked licenses involves substantial variation in the issues and postures presented by each individual case; (4) they similarly cannot satisfy the typicality requirement because Thomas and Hixson proving their own right to relief would not necessarily establish the right to relief of others; and (5) they cannot satisfy Rule 23(b)(2) because they cannot identify a form of injunctive relief that would be applicable to the class as a whole.
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1. Reliance on Statement of Claudia Wilner Purkey objects to the plaintiffs’ reliance, in their motion for class certification, on a 28 U.S.C. § 1746 declaration of Claudia Wilner, which addresses a number of foundational facts regarding their proposed class and Tennessee’s scheme for revoking driver’s licenses for court debt. (Docket No. 6-3.) Wilner is one of the plaintiffs’ lawyers, and Purkey asks the court to strike her declaration on the ground that Wilner has inappropriately proffered herself as a fact witness in a case where she is also serving as counsel. Under Tennessee’s Rules of Professional Conduct, “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless” one of three enumerated exceptions applies. Tenn. Sup. Ct. R. 8, RPC 3.7(a); see also Local R. 83.01(e)(4) (“The standard of professional conduct of the members of the bar of this Court shall include the current Tennessee Code of Professional Responsibility, Tenn. Sup. Ct. R. 8.”). As Thomas and Hixson point out, Rule 3.7(a), at least by its text, specifically applies to activity “at trial” and does not directly address preliminary stages such as a motion for class certification. Nevertheless, Rule 3.7(a) may be implicated by these earlier proceedings if an attorney’s activities or statements are such that they would make her “likely to be a necessary witness” when the time for trial arrives. Nothing in Wilner’s statement raises such an issue here. For example, as the court has already noted, Rule 3.7(a) expressly permits an attorney to provide “testimony relat[ing] to an uncontested issue.” Tenn. Sup. Ct. R. 8, RPC 3.7(a)(1). Several of the facts attested to by Wilner fall clearly within that exception. For example, Wilner attests that only 7% of the people whose licenses were revoked from July 1, 2012 through June 2, 2016, have had their licenses restored. (Docket No. 6-3 ¶¶ 11–13.) Purkey has since stipulated to that fact. (Docket No. 40 ¶ 44.) Other
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of Wilner’s claims are merely citations to materials put out by the State of Tennessee itself. For example, she cites the Tennessee Department of Correction’s own figures regarding the number of people released by the state from jail or prison in Fiscal Year 2015–16 (13,987) and the average time served (4.57 years). (Docket No. 62 ¶ 14.) See Tenn. Dep’t of Corr., Statistical Abstract: Fiscal Year 2016 30 (Oct. 2016).16 “[P]ublic records and government documents available from reliable sources” are generally appropriate for judicial notice. U.S. ex rel. Dingle, 270 F. Supp. 2d at 972. Wilner’s citation to those statistics is, therefore, little different than simply citing them in a brief. Still other of Wilner’s statements bear on issues related to her representation of her client and fall within Rule 3.7(a)(2)’s exception for “testimony relat[ing] to the nature . . . of legal services rendered in the case.” (See, e.g., Docket No. 6-3 ¶¶ 1–2, 25.)
Wilner does draw the court’s attention to a handful of third-party sources related to the prevalence of poverty among people with criminal records. (Id. ¶ 16 (citing Rebecca Vallas & Sharon Dietrich, One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records 9 (2014); The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility (2010); Joan Petersilia, When Prisoners Return to the Community: Political, Economic and Social Consequences, Sentencing & Corrections, Nov. 2000, at 9.) If Wilner were planning to testify at trial regarding the credibility and contents of those reports, it would indeed likely pose a problem under Rule 3.7(a), as was discussed regarding the Brookings Report earlier. Unless Purkey disputes those reports’ very existence, however, Wilner’s merely informing the court that the reports have been published is not fact testimony on a contested issue. In any event, the court does not rely on those third-party reports for its certification decision.
16 Available at https://www.tn.gov/content/dam/tn/correction/documents/StatisticalAbstract2016.pdf. 70
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The few bits of Wilner’s attestation that arguably bear on contestable factual issues merely involve Wilner’s drawing simple inferences from the law and the uncontested facts presented. For example, Ms. Wilner speculates about the feasibility of a court debtor’s repayment of court debt while he is still incarcerated. (Docket No. 6-3 ¶ 13.) Insofar as these few statements amount to factual assertions, the court finds them unnecessary to resolving the issue of class certification and finds that they do not establish that Wilner is likely to be a necessary witness at trial. Purkey’s request that Wilner’s statement be stricken is, therefore, denied.
2. Numerosity Purkey argues next that Thomas and Hixson cannot establish that their proposed class is sufficiently numerous to warrant certification under Rule 23. Purkey concedes that, from July 1, 2012, to June 1, 2016, TDSHS revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes and restored only 10,750. (Docket No. 64 ¶ 107–08; see also Docket No. 40 ¶¶ 43–44 (stipulating to statistics)). He argues, however, that there is no way to know how many of those people were indigent. Thomas and Hixson, he argues, have therefore failed to demonstrate numerosity. Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. Although there is no strict numerical test, substantial numbers usually satisfy the numerosity requirement. Gilbert v. Abercrombie & Fitch Co., No. 2:15-cv-2854, 2016 WL 4159682, at * 4 (S.D. Ohio Aug. 5, 2016) (citing Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006)). “There is no magic minimum number that will breathe life into a class.” Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001) (quoting Jones v. CCH-LIS Legal Info. Servs., 1998 WL 671446, *1 (S.D.N.Y. Sept.28, 1998)). Plaintiff must show some evidence of or reasonably estimate the number of class members, and, in assessing numerosity, the court
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may make common sense assumptions without the need for precise quantification of the class. Id.
Purkey is correct that Thomas and Hixson have not put forth evidence that would allow the court to know precisely how many of the people whose driver’s licenses were revoked are indigent. However, “the exact number of class members need not be pleaded or proved” for a class to be certified, as long as the class representatives can show that joinder would be impracticable. Golden v. City of Columbus, 404 F.3d 950, 965–66 (6th Cir. 2005) (quoting McGee v. E. Ohio Gas Co., 200 F.R.D. 382, 389 (S.D. Ohio 2001)). Facts, common sense, and the basic features of the statutes at issue all dictate that there is little doubt that that is the case here. Tennessee’s own Administrative Office of the Courts has written that it is “generally agreed that approximately 75% of those being prosecuted by the district attorney will be indigent” for the purpose of providing counsel. Tenn. Admin. Office of the Courts, Tennessee’s Indigent Defense Fund: A Report to the 107th Tennessee General Assembly 19 (2011).17 Although one can debate the degree to which that number would translate to indigence for the purpose of paying court debt, it establishes a reasonable baseline for considering the pervasiveness of indigence in the Tennessee criminal justice system. Moreover, the nature of Tennessee’s scheme is that every person who cannot pay his court debt will face revocation unless he happens to receive some form of discretionary relief from a court. To deny that there are a substantial number of indigent debtors facing revocation, then, is essentially to deny that indigent debtors exist at all—or, at the very least, to assume, based on no evidence, that all or virtually all of those debtors have received relief that is, by its own terms, wholly discretionary. Such a possibility strikes the court as decidedly implausible.
17 Available at http://www.tsc.state.tn.us/sites/default/files/docs/aoc_indigent_defense_fund_report.pdf. 72
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Moreover, as Thomas and Hixson point out, their class would be sufficiently numerous, even if only a small percentage of the people whose licenses have been revoked turned out to be indigent. Indeed, if only one percent of the people whose licenses were revoked and never restored were indigent, then there would still be over 1,300 class members. Purkey’s own speculation on this point tends actually to support the position of the plaintiffs. Purkey speculates that, although Thomas and Hixson suggest that most of the people whose licenses were revoked pursuant to section 40-24-105(b) were indigent, “[i]t is just as likely, based upon the proof before this Court at this stage, that a majority of those revocations involved individuals with the means to satisfy the outstanding sums.” (Docket No. 67 at 7.) But even if a bare majority of those people are non-indigent, that still leaves a class of tens of thousands. Even in Purkey’s counterhypothetical intended to ward off certification, then, the plaintiffs’ class is sufficiently numerous. The court will not deny certification for failure to satisfy Rule 23(a)(1).
3. Commonality and Typicality Purkey’s latter two objections under Rule 23(a) raise the same issue from different angles. Thomas and Hixson are two particular defendants, facing indigency for their own specific reasons, required to pay court debt in two particular counties. Tennessee, however, has numerous judicial districts, courts, and clerks’ offices, which deal with a wide array of defendants. The practices for assessing and dealing with court debt may well vary substantially from county to county, from judge to judge, and from case to case. The questions then arise: (1) do all of the indigent people facing or living with revocations truly suffer a common injury; and (2) are the injuries of Thomas and Hixson truly typical of those injuries?
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a. Commonality Purkey is correct that Thomas and Hixson seek to assert claims for a diverse class of plaintiffs. The commonality requirement, however, does not simply call for the court to list all the traits that can be ascribed to the various class members and tally up the differences. “Commonality” refers to commonality with regard to the specific claims asserted. In order for the court to certify the class under Rule 23, the class members’ claims must depend upon a common contention of such a nature that it is capable of class-wide resolution. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 852 (6th Cir. 2013). Variation in the ancillary details of the class members’ cases is insufficient to defeat certification, as long as “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue.” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). The claims of all the plaintiffs in this case share at least two central questions: (1) whether Tennessee can revoke a driver’s license for failure to pay court debt without the opportunity to establish that the debtor is entitled to an exception based on his indigence; and (2) what minimum procedures the state must afford a debtor facing revocation. As the court has already discussed, those two questions implicate a number of legal and factual sub-issues, which will also be shared by the class. Moreover, while the individual cases of the different class members may vary substantially, those variations are immaterial to the categorical right that Thomas and Hixson have asserted. If Thomas and Hixson had cast their net more widely and sought to litigate the general fairness of Tennessee’s system of court debt, Purkey might be correct that the substantial amount of local and case-by-case variation would make class certification impossible. Thomas and Hixson, however, are not asking the court to consider the
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constitutionality of every debt assessment, collection effort, or clerk’s office policy. They complain of a specific injury: the revocation of a person’s driver’s license for nonpayment of court debt without the opportunity to demonstrate that the person is entitled to an exception from revocation based on his indigence. That injury is common throughout the proposed class, as are the questions of law and fact underlying it.
Purkey argues next that Thomas and Hixson cannot establish commonality, because the various members of the class pose different safety risks if allowed on the road. Section 40-24105(b), however, has nothing to do with safety risk. Tennessee has other provisions for the revocation of driver’s licenses for reasons related to safety. See, e.g., Tenn. Code Ann. § 55-50501(a)(1) (calling for revocation based on conviction for vehicular homicide), (a)(2) (calling for revocation based on conviction for driving under the influence). The only reason anyone loses his license pursuant to section 40-24-105(b) is, by definition, that the person failed to pay court debt. The proposed class presumably includes both excellent drivers and mediocre drivers, just like the general population. This case, though, is concerned only with the impediment to their driving related solely to unpaid court debt. If a member of the class should qualify for revocation for some other reason, the proposed relief would pose no obstacle. With regard to the narrow claims raised in this case, Thomas and Hixson have established commonality.
b. Typicality Typicality is met if the class members’ claims are fairly encompassed by the named plaintiffs’ claims. This requirement ensures that the class representatives’ interests are aligned with the interests of the represented class members so that, by pursuing his own interests, the class representative also advocates the interests of the class members. Whirlpool, 722 F.3d at 852–53. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course
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of conduct that gives rise to the claims of other class members and if his claims are based on the same legal theory. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). Commonality and typicality tend to merge because both of them serve as guideposts for determining whether, under the particular circumstances, maintenance of a class action is economical, and whether the plaintiff’s claims and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Young v. Nationwide Mut. Ins. Co., 693 F.3d 352, 542 (6th Cir. 2012).
In this instance, with commonality established, typicality readily follows. The underlying economic situations of Thomas and Hixson and the details of their convictions may be unique to them, but, with regard to the issues central to their claims, Thomas and Hixson are as typical as any member of the class. Because they have faced and received revocations for unpaid court debt under section 10-24-105 and they are indigent, they are typical.
4. Rule 23(b) Purkey’s argument regarding Rule 23(b) mirrors his arguments on commonality and typicality and, ultimately, succumbs to the same flaws. After a plaintiff shows that he satisfies all of the requirements of Rule 23(a), he must establish that “the class he seeks to represent falls within one of the subcategories of Rule 23(b).” Senter, 532 F.2d at 522. Thomas and Hixson rely on Rule 23(b)(2), which covers situations in which “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). Rule 23(b)(2) permits certification only for “those classes with homogenous interests” relative to the relief sought. McDonald v. Franklin Cty., Ohio, 306 F.R.D. 548, 558 (S.D. Ohio 2015) (quoting Coleman, 296 F.3d at 447).
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Purkey again attempts to defeat class certification by pointing to the array of differing courts responsible for the putative class members’ debts. Thomas and Hixson, however, are not asking this court to wade into every judicial district’s procedures and solve the wide array of challenges facing every debtor. Rather, they are asking the court simply to enjoin TDSHS from enforcing the statute in its current form because TDSHS’s process makes no allowance for indigence of the debtor. Rule 23(b)(2) is well suited to cases, such as this one, where class representatives allege an injury inherent to the administration of a generally applicable government policy. See Daffin v. Ford Motor Co., No. C-1-00-458, 2004 WL 5705647, at *5 (S.D. Ohio July 15, 2004) (“Although not limited to civil rights suits, 23(b)(2) was plainly designed . . . to address them . . . .”), aff’d, 458 F.3d 549. It may be that the constitutional protections that Thomas and Hixson seek to vindicate can be satisfied while continuing to allow for a substantial amount of local variation regarding how the required safeguards are actually to be provided. That hypothetical potential for variation, however, does not negate the unitary nature of the relief sought. The plaintiffs’ claims meet the requirements of Rule 23(b)(2).
5. Propriety of Certification Purkey identifies no other grounds for denying class certification here. Rule 23(a)(4) requires the court only to certify the class if “the representative parties will fairly and adequately protect the interests of the class.” That requirement considers both general commonality of interests and whether the putative representative “will vigorously prosecute the interests of the class through qualified counsel.” Gonzales v. Cassidy, 474 F.2d 67, 73 (6th Cir. 1973). The record provides ample basis for concluding that Thomas and Hixson have made such a showing. Thomas and Hixson have also satisfied Rule 23(a)(1), (2), and (3) by showing numerosity, commonality, and typicality, and they have demonstrated that their case falls within the
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boundaries of Rule 23(b)(2). Rule 23(c)(1) directs this court to determine whether to certify a class “[a]t an early practicable time after a person sues or is sued as a class representative,” and there appear to be no more substantive questions remaining regarding whether certification is appropriate here. The court, accordingly, will certify the proposed class.
One procedural issue, however, remains outstanding: appointment of class counsel. Rule 23(g) requires the court to appoint counsel to represent the class, chosen from among counsel involved in the litigation on behalf of individual members of the class. Hixson and Thomas have not identified whom, specifically, they are putting forward to serve as class counsel. Although the court notes that “the materials submitted in support of the motion for class certification may suffice to justify appointment [of class counsel] so long as the information described in paragraph (g)(1)(C) is included,” Fed. R. Civ. P. 23(g)(2) advisory committee’s note, the court will, rather than guessing at what Thomas and Hixson would propose, direct their counsel to designate which individual or individuals seek appointment as class counsel.
IV. CONCLUSION For the foregoing reasons, the Motion to Dismiss (Docket No. 23) will be denied and the Renewed Motion for Class Certification (Docket No. 36) will be granted. Purkey’s Motion for Summary Judgment (Docket No. 61), as well as the plaintiffs’ Motion for Summary Judgment (Docket No. 36), will be held in abeyance pending the completion of supplemental briefing and stipulations, as directed in the accompanying order. The court will further order plaintiffs’ counsel to designate in writing which individual or individuals seek appointment as class counsel, in accordance with Federal Rule of Civil Procedure 23(g), by close of business on April 6, 2018.
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An appropriate order will enter. ENTER this 26th day of March 2018.
______________________________ ALETA A. TRAUGER United States District Judge
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES THOMAS and DAVID HIXSON, )

)

Plaintiffs,

)

)

v.

)

)

BILL HASLAM, Governor of Tennessee, )

in his official capacity; DAVID W.

)

PURKEY, Commissioner for the

)

Department of Safety and Homeland

)

Security, in his official capacity; and

)

HERBERT SLATERY, III, Attorney

)

General and Reporter, in his official

)

capacity,

)

)

Defendants.

)

Case No. 3:17-cv-00005 Judge Aleta A. Trauger

MEMORANDUM

Before the court are a Motion for Summary Judgment (Docket No. 61) filed by the sole

remaining defendant in this case, the Commissioner of the Tennessee Department of Safety and

Homeland Security (“TDSHS”), David W. Purkey, as well as a Motion for Summary Judgment

(Docket No. 37) filed by the plaintiffs, James Thomas and David Hixson. For the reasons set

forth herein and in the court’s preliminary Memorandum of March 26, 2018 (Docket No. 93) (“First Memorandum”1), the plaintiffs’ Motion will be granted and Purkey’s Motion will be

denied.

I. BACKGROUND AND PROCEDURAL HISTORY

A person convicted of a crime in Tennessee is typically made liable, to the government,

for various sums of money related to his prosecution. Some of the defendant’s debt may reflect

fines imposed as part of his sentence, but Tennessee also holds a convicted defendant liable for

1 See Appendix.

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additional, often substantial, amounts in the form of costs assessed against him and taxes imposed on litigants by the Tennessee General Assembly. See Tenn. Code Ann. § 40-35104(c)(1); Tenn. Code Ann. § 40-25-123(a); Tenn. Code Ann. § 67-4-602(a). If the defendant does not pay these fines, costs, and litigation taxes—also known as “court debt”—then local authorities can attempt to collect on the debt using the ordinary tools available to judgment creditors, such as garnishment of wages or execution on property. Tenn. Code Ann. § 40-24105(a); Tenn. R. Civ. P. 69.05–.07; see Tenn. Op. Att’y Gen. No. 06-135 (Aug. 21, 2006). Sometimes those tools may be effective; sometimes they may not. In particular, when a defendant has little or no income or assets, garnishment and execution will be of little use, because no tool is sufficient to collect from resources that do not exist. The fact that it is difficult to collect debts from very poor debtors is a reality faced by people and entities, both public and private, in a wide array of circumstances; indeed, it is a problem as old, presumably, as debt itself.2
Failure to pay court debt, however, has consequences that failing to pay other debt does not. In particular, TDSHS, by statute, revokes the driver’s license of any person who, like Thomas and Hixson, has failed to pay court debt for a year or more, unless that person is granted a form of discretionary relief by a court. See Tenn. Code Ann. § 40-24-105(b). The details of the plaintiffs’ individual cases, as well as Tennessee’s system for administering court debt, can be found in the First Memorandum. In short, Thomas and Hixson both live in severe poverty and both owe court debt related to past criminal convictions. Thomas is totally and permanently
2 See, e.g., Code of Theodosius 4.20.1 (Clyde Pharr, trans.) (acknowledging inability to collect debt from a person whose “fortunes . . . have been swept away by robbery, overwhelmed perhaps by shipwreck or fire, or shattered by some misfortune and loss produced by the onset of an overwhelming force”), quoted in Hon. Theodor C. Albert, The Insolvency Law of Ancient Rome, 28 Cal. Bankr. J. 365, 386 (2006); A. H. Feller, Moratory Legislation: A Comparative Study, 46 Harv. L. Rev. 1061, 1062 (1933) (discussing debt moratoria under classic Greek Law and under the Code of Justinian).
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disabled. Hixson has spent time in recent years living in a homeless shelter after a period of incarceration. Each man struggles to afford the basic necessities of life and is unable to pay the court debt assessed against him. Because they failed to pay their court debt for over a year, Thomas and Hixson have both had their driver’s licenses revoked by TDSHS.
In contrast, a Tennessee driver with a criminal record identical to Thomas’s or Hixson’s—but with the material resources to pay his court debt—could have avoided revocation simply by making the payments that the plaintiffs cannot. The plaintiffs have challenged this scheme—not because they believe that they should be released from the debt that they owe or because they dispute the government’s right to impose aggressive sanctions on those who owe court debt that they can but refuse to pay—but because Tennessee’s system has the actual effect of imposing a harsher punishment on indigent defendants than on non-indigent defendants based solely on their economic circumstances. A non-indigent defendant has a choice: pay or lose his license. Drivers like Thomas and Hixson, they argue, have no such choice. The plaintiffs challenge this differential treatment as unconstitutional pursuant to 42 U.S.C. § 1983.
Thomas and Hixson filed their class action Complaint on January 4, 2017. (Docket No. 1.) Shortly thereafter, they filed a motion asking the court to certify a class defined as follows:
All persons whose Tennessee driver’s licenses have been or will be revoked pursuant to Tenn. Code Ann. § 40-24-105(b), and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances. (Docket No. 6 at 2.) The court granted that motion on March 26, 2018, and Thomas and Hixson now represent a statewide class of similarly situated plaintiffs. (Docket No. 94.) That class challenges the constitutionality of Tennessee’s court debt-based revocation scheme on three grounds: first, for violation of criminal defendants’ due process and equal protection rights by the “mandatory revocation of people’s driver’s licenses because they are too poor to pay Court
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Debt without any inquiry into their ability to pay” (Docket No. 1 ¶ 100); second, for violation of their due process right to notice and a hearing on whether they can pay their court debt (Id. ¶ 101); and, third, for violation of equal protection based on Tennessee’s policy of revoking the licenses of court debtors and not other similarly situated debtors (Id. ¶ 102). Purkey filed a Motion to Dismiss (Docket No. 23) and a Motion for Summary Judgment (Docket No. 61), arguing that (1) the court was barred from considering the plaintiffs’ claims under the RookerFeldman doctrine and (2) Purkey was entitled to summary judgment on the merits. The plaintiffs also filed a Motion for Summary Judgment. (Docket No. 37.) In the First Memorandum and the accompanying Order, the court denied the Motion to Dismiss, resolved most of the issues underlying the Motions for Summary Judgment, and ordered supplemental briefing on a few outstanding evidentiary matters. (Docket Nos. 93 & 94.) That briefing having been completed, the court is prepared to rule on whether either party is entitled to summary judgment.
II. LEGAL STANDARD Rule 56 requires the court to grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To win summary judgment as to the claim of an adverse party, a moving defendant must show that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim. Once the moving defendant makes his initial showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Conversely, to win summary judgment as to its own claims, a moving plaintiff must demonstrate that no genuine issue of material fact exists as to all essential elements of her
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claims. “In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “the judge’s function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 249. An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252).
III. ANALYSIS A. Issues Resolved in the First Memorandum
In the First Memorandum and the accompanying Order, the court denied Purkey’s Motion to Dismiss but concluded that some outstanding factual and evidentiary issues stood in the way of resolving the Motions for Summary Judgment. The court, however, did rule on a number of underlying legal issues key to the case. Specifically, the court held as follows3:
1. The plaintiffs’ claims are not barred by the Rooker-Feldman doctrine, because the plaintiffs challenge only TDSHS’s imposition of one particular post-judgment collection mechanism, not any aspect of the plaintiffs’ convictions or the validity of their court debt. See Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432, 437 (6th Cir. 2006). (First Memorandum at 18–24.)
3 The court, moreover, expressly incorporates, in its entirety, the analysis of the First Memorandum into its reasoning here. See Appendix.
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2. Under a long and well-established line of Supreme Court precedents, a statute that penalizes or withholds relief from a defendant in a criminal case, based solely on his nonpayment of a particular sum of money and without providing for an exception if he is willing but unable to pay, is the constitutional equivalent of a statute that specifically imposes a harsher sanction on indigent defendants than on non-indigent defendants. See Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963); Roberts v. LaVallee, 389 U.S. 40 (1967); Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971); Mayer v. City of Chicago, 404 U.S. 189 (1971); Bearden v. Georgia, 461 U.S. 660 (1983). In other words, the Supreme Court has held that the Constitution “addresses itself to actualities,” Griffin, 351 U.S. at 22 (Frankfurter, J., concurring in judgment), and, therefore, is not blind to the commonsense fact that an ultimatum following the formula of “the money or your _____” is a different proposition for someone who has the money than for someone who does not. (First Memorandum at 25–30, 37–38.)
3. The Supreme Court has held that the Griffin line of cases implicates both Due Process and Equal Protection principles in ways that defy an easy application of the Court’s more general precedents involving either constitutional guarantee alone. See Bearden, 461 U.S. at 665–66. Accordingly, the Court has warned against resorting to the “easy slogans” and “pigeonhole analysis” associated with the rote sorting of cases into those involving either strict scrutiny or rational basis scrutiny. Id.at 666. (First Memorandum at 30–34.)
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4. Nevertheless, the law of the Sixth Circuit is that distinctions based on economic circumstances are subject only to rational basis review unless they involve a fundamental right. See Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 660 (6th Cir. 2008) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973)). Furthermore, the Sixth Circuit has held that, while the rights to interand intrastate travel are fundamental rights, the right to drive a motor vehicle is not. See League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (citing Saenz v. Roe, 526 U.S. 489, 500 (1999); Johnson v. City of Cincinnati, 310 F.3d 484, 494–98 (6th Cir. 2002)). Accordingly, this court is bound to consider this case under rational basis review, which asks only whether the challenged policy is rationally related to a legitimate government purpose. See Midkiff v. Adams Cty. Reg’l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005). (First Memorandum at 36.)
5. The Sixth Circuit has recognized, however, that the application of rational basis review to distinctions based on indigence may call for a more searching inquiry if the challenged scheme is one that not only treats indigent people more harshly than the non-indigent, but also does so in a way that threatens to exacerbate the indigents’ poverty. See Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. 2010) (discussing James v. Strange, 407 U.S. 128 (1972)). In other words, if a statute treats the rich better than the poor in a way that will affirmatively make the poor poorer, then the court should—though still not departing from the boundaries of rational basis review—take extra care to make sure that the minimum requirements of rationality are met. (First Memorandum at 33–34.)
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6. The State of Tennessee, its courts, and its local governments have a legitimate interest in collecting court debt. See Sickles v. Campbell Cty., Ky., 501 F.3d 726, 731 (6th Cir. 2007) (noting government interests in “sharing the costs of incarceration and furthering offender accountability”). While that interest may be reframed and subdivided in many ways, the core premise is that, once the government lawfully imposes a debt that is itself supported by a legitimate purpose, then the government also has a legitimate interest in encouraging payment of that debt. (First Memorandum at 36 & n.7.)
7. A scheme that revoked the driver’s licenses of non-indigent court debtors after one year of nonpayment would pass rational basis review, because the threat of revocation would plausibly serve as a method for coercing those people into paying their debts. (First Memorandum at 36–37.) Under the Griffin line of cases, however, the court must specifically consider whether the scheme’s lack of an indigence exception is itself rational. Revocation would not be an effective mechanism for coercing payment from a truly indigent debtor, because no person can be threatened or coerced into paying money that he does not have and cannot get. (Id. at 37.) The numbers bear that ineffectiveness out. From July 1, 2012, to June 1, 2016, TDSHS revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes; only 10,750 of those people—about 7%—had their licenses reinstated. (Docket No. 64 ¶¶ 107–08.) If Tennessee’s revocation law were capable of coercing people into paying their debts in order to get their licenses back, it would be doing so. The overwhelming majority of the time, it is not.
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8. Simply being ineffective does not typically cause a law to fail rational basis review, which is highly deferential to the legislative prerogative to choose the means through which the state will pursue its legitimate objectives. However, the Supreme Court has made clear that, “even in the ordinary . . . case calling for the most deferential of standards,” a law may be struck down if its substance is “so discontinuous with the reasons offered for it” that any pretense of rationality cannot be sustained. Romer v. Evans, 517 U.S. 620, 632 (1996); see also Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 653 (1974) (Powell, J., concurring in the result) (arguing that policy would fail rational basis review because it is “either counterproductive or irrationally overinclusive”). The court’s review includes considering whether, “in practical effect,” the law “simply does not operate so as rationally to further the” legitimate purpose professed. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 537 (1973). (First Memorandum at 41.)
9. Ultimately, the court need not determine if the driver’s license revocation law would fail rational basis review based on its sheer ineffectiveness alone, because, as applied to indigent drivers, the law is not merely ineffective; it is powerfully counterproductive. If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect. For one thing, the lack of a driver’s license substantially limits one’s ability to obtain and maintain employment. Even aside from the effect on employment, however, the inability to drive introduces new obstacles, risks, and costs to a wide array of life activities, as the former driver is forced into a daily ordeal of logistical triage to
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compensate for his inadequate transportation. In short, losing one’s driver’s license simultaneously makes the burdens of life more expensive and renders the prospect of amassing the resources needed to overcome those burdens more remote. (Id. at 39–41, 47–51.) 10. Because driving is necessary for so many important life activities, some Tennesseans whose licenses have been revoked continue to drive, despite the state’s revocation of their privileges. Driving on a revoked license is a misdemeanor, punishable by up to six months in jail and a fine of up to $500 for the first offense and up to 11 months and 29 days in jail and a fine of up to $2,500 for subsequent offenses. Tenn. Code Ann. §§ 40-35-111(e)(1)–(2), 55-50-504(a) (1)–(2). As a result, a license revocation based on court debt from a single conviction may begin a cycle of subsequent convictions and mounting court debt that renders the driver increasingly unable to amass the resources necessary to get his license back. His first conviction—of trespass, for example, like Thomas’s— creates a court debt; that debt leads to a license revocation; the revocation leads to another conviction, this time for driving on a revoked license; the new conviction creates more debt; and the cycle begins again, with the driver, who was already indigent, only deeper in the red to the government and less likely ever to have a driver’s license again. This propensity to create a debt spiral further exacerbates the counterproductive nature of Tennessee’s scheme, as applied to indigent drivers. Not only is the law ineffective at collecting debt; not only is it counterproductive with regard to existing debt; but, in at least some cases, it
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affirmatively leaves more unpayable debt in its wake. (First Memorandum at 40– 41.) 11. Based on the foregoing, the plaintiffs have stated a plausible theory of constitutional protection and constitutional injury, because they have been deprived of equal protection and due process by a law that lacks a rational basis for furthering any legitimate government objective. (First Memorandum at 46.) 12. Some of the supporting facts that the plaintiffs sought to introduce, however, were beyond the scope of judicial notice. The briefing of the parties failed to resolve the question of whether all of those facts were appropriate for consideration on a motion for summary judgment. The court, accordingly, held the motions for summary judgment in abeyance with regard to the plaintiffs’ Count I and ordered further briefing on the underlying factual and evidentiary issues. (Id. at 51–58.) 13. With regard to Count II, which argues that members of the class were denied due process with regard to the deprivation of their driver’s licenses, the court concluded that (1) there were disputed issues of fact with regard to the timing of the notice and effective dates related to the underlying revocations and (2) the extent of process due was likely to be effected, in significant part, by whether the plaintiffs successfully demonstrated the right to an indigence exception at issue in Count I. The court, accordingly, held the motions for summary judgment in abeyance with regard to Count II as well. (Id. at 63–68.) 14. With regard to Count III, the court held that the plaintiffs had, again, stated a plausible theory of constitutional protection, but that the court’s consideration of that claim would benefit from the requested additional briefing. Specifically, the
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court held that, pursuant to the Supreme Court’s holding in James v. Strange, a state’s uniquely harsh treatment of a specific class of indigent criminal defendant debtors cannot be carried out in “such discriminatory fashion,” relative to other debtors, that it “blight[s] . . . the hopes of indigents for self-sufficiency and selfrespect.” 407 U.S. at 141–42. The degree to which Tennessee’s scheme violates that rule depends on the same factual considerations at issue under Count I. (First Memorandum at 58–63.) The parties have now filed the requested supplemental briefing, leaving the motions for summary judgment fully ripe and pending before the court. B. Remaining Factual and Evidentiary Issues 1. Newly Agreed-Upon Facts This court’s Local Rules require that a party filing a motion for summary judgment support that motion with a “separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial.” Local R. 56.01(b). The movant must support his assertion that a fact is undisputed “by specific citation to the record.” Id. The nonmoving party must then “respond to each fact set forth by the movant by either (i) agreeing that the fact is undisputed; (ii) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (iii) demonstrating that the fact is disputed.” Local R. 56.01(c). If the nonmoving party contends that a particular fact is disputed, then the nonmoving party’s assertion, like the movant’s, “must be supported by specific citation to the record.” Id. In support of their motion for summary judgment, the plaintiffs posited a number of allegedly undisputed facts tending to show the centrality of driving to life and economic selfsufficiency in Tennessee. Some were based on tabulations of census data, while others cited to a
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2011 Brookings Institution report entitled Missed Opportunity: Transit and Jobs in Metropolitan America (“Brookings Report”). Purkey responded to these facts, not by conceding them or citing to portions of the record showing them to be disputed, but simply by objecting to them on evidentiary grounds. As the court explained in the First Memorandum, Purkey’s responses (1) were premised on a misunderstanding of the movant’s admissibility burden under Federal Rule of Civil Procedure 56(c)(1)–(2), which considers the admissibility of a fact at trial, not merely the admissibility of it in the form presented at the motion stage, and (2) arguably failed to conform to Local Rule 56.01(c), because Purkey did not indicate whether he actually disputed the facts and did not cite to the record in support of his responses. (First Memorandum at 54–55 & n.15.) Some of his underlying evidentiary objections, however, did raise colorable legal issues regarding whether the plaintiffs should be permitted to rely on the relevant facts in support of their motion for summary judgment. (Id.)
In order to better hone in on the areas of actual disagreement between the parties, the court ordered Purkey and the plaintiffs to confer and attempt to ascertain which of the objectedto facts are actually disputed. To their credit, the parties have done so and, as the court instructed, have filed additional statements of undisputed facts, as well as a few modified proposed statements of undisputed facts and responses in opposition thereto. (See Docket No. 97.)
In particular, it is now undisputed, for purposes of summary judgment, that, according to U.S. Census Bureau data:
• 92.5% of the people who work in the Chattanooga metropolitan area drive to work;
• 94.6% of the people who work in the Clarksville metropolitan area drive to work;
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• 93.1% of the people who work in the Cleveland metropolitan area drive to work; • 93.4% of the people who work in the Jackson metropolitan area drive to work; • 93.8% of the people who work in the Knoxville metropolitan area drive to work; • 93.5% of the people who work in the Memphis metropolitan area drive to work; • 92.4% of the people who work in the Nashville metropolitan area drive to work;
and • Altogether, 93.4% of workers who reside in Tennessee drive to work. (Docket No. 97 at 4–6.) Purkey has also agreed, for purposes of summary judgment, to a few additional general postulates regarding the role of driving in Tennessee,4 namely that: • “For most adult residents of Tennessee, the ability to drive is an important aspect
of daily life, such as for accessing food, shelter, work, education, medical treatment, and family.” (Id. at 2.) • “Many indigent people who owe Court Debt and whose licenses have been revoked under the Statute still need to drive in order to get to work, school, or medical appointments.” (Id. at 6–7.) • “Even in cities with some public transportation, for many individuals, the public transportation offered is often inconvenient as a practical matter to enable them to travel to and from work.”(Id. at 3–4.) These more general stipulations differ little, if at all, from what the court has already indicated it can consider as a matter of judicial notice. The parties’ agreement on those premises, however—
4 Purkey does reiterate his hearsay objections with regard to these assertions. The formulations here, however, are so broad and undeniable that there is no need to turn to any of the underlying, purportedly inadmissible sources to accept them as undisputed.
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along with Purkey’s now having conceded a substantial amount of quantitative evidence regarding the importance of driving to employment in Tennessee—confirms that there is little remaining room for dispute with regard to the plaintiffs’ proposition that, in light of the actual realities of economic life in Tennessee, the loss of one’s ability to drive is substantially deleterious to a person’s capacity for economic self-sufficiency.
2. Facts Related to the Brookings Report The parties do continue to disagree with regard to whether the plaintiffs can rely on facts that can be found in the Brookings Report. Purkey initially objected to the plaintiffs’ reliance on facts from the Brookings Report as improper because the Report, itself, is hearsay. As the court explained in the First Memorandum, however, the determinative issue regarding whether a fact can be considered in support of a motion for summary judgment is not whether it is presented, alongside the motion, in its final admissible form, but whether the fact can be presented in admissible form at trial. See Mangum v. Repp, 674 F. App’x 531, 536–37 (6th Cir. 2017) (quoting Fed. R. Civ. P. 56(c), advisory committee’s note to 2010 amendment); Mount Vernon Fire Ins. Co. v. Liem Constr., Inc., No. 3:16-CV-00689, 2017 WL 1489082, at *3 (M.D. Tenn. April 26, 2017) (Crenshaw, J.); Wilson v. Stein Mart, Inc., No. 3:15-CV-01271, 2016 WL 4680008, at *2 (M.D. Tenn. Sept. 7, 2016) (Nixon, S.J.); Jeffrey W. Stempel et al., 11-56 Moore’s Federal Practice - Civil § 56.91 (2018); see also Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017) (“At the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form. After a 2010 revision to Rule 56, materials cited to support or dispute a fact need only be capable of being presented in a form that would be admissible in evidence.” (citations and internal quotation marks omitted)); Romero v. Nev. Dep’t of Corr., 673 F. App’x 641, 644 (9th Cir. 2016) (noting that “Rule 56 was amended in 2010 to
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eliminate the unequivocal requirement that evidence submitted at summary judgment must be authenticated” and instead “requires that such evidence ‘would be admissible in evidence’ at trial” (quoting Fed. R. Civ. P. 56(c)(4)); Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (noting that, if a fact is objected to on evidentiary grounds on a motion for summary judgment, “the burden is on the proponent of the evidence to show that the material is admissible as presented or to explain the admissible form that is anticipated” (emphasis added)).
The court ordered the plaintiffs to “file a supplemental brief, accompanied, as necessary, by supplemental affidavits and supplemental statements of undisputed fact, regarding the evidence that they anticipate presenting at trial on the necessity of driving in Tennessee, as well as the admissible forms in which they anticipate offering that evidence.” (Docket No. 94 at 2–3.)
In support of their supplemental briefing, the plaintiffs have introduced a 28 U.S.C. § 1746 Declaration of Brookings fellow Adie Tomer, one of the authors of the Brookings Report and the head of Brookings’ Metropolitan Policy Initiative (“Tomer Declaration”). (Docket No. 108-1.) Tomer explains the methodology of the Brookings Report both generally and in relation to its Tennessee-specific conclusions. (Id. ¶¶ 6–15.) He also declares that, although a number of years have passed since the Brookings Report was compiled, he has personally continued to monitor public transportation trends, including those in Tennessee:
In my work, I keep current on transportation trends in metropolitan areas throughout the United States. Based on that work, it appears (although it is not certain) that there may have been some moderate increase in access to transit in Memphis since the Report was issued, although such access in any event remains well below 50%. Aside from that, I have no reason to believe that the current (i.e., as of 2018) state of affairs as to the matters set forth in the preceding paragraph is materially different from what it was in 2011, and every reason to believe that it is not. (Id. ¶ 16.)
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The plaintiffs identify four specific factual assertions for which they seek to rely, in whole or in part, on Tomer’s research and analysis that first appeared in the Brookings Report:
1. 90 minutes is a reasonable maximum for an individual’s one-way commuting time to or from work.
2. Even in cities with some public transportation, for many individuals, the public transportation offered is often insufficient as a practical matter to enable them to travel to and from work in a reasonable amount of time.
3. In Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation.
4. In Nashville, Knoxville, and Chattanooga, more than two thirds of workingage residents lack access to public transportation.
(Docket No. 107 at 2–3 (citations omitted).) For the purposes of this opinion, the court will refer to those assertions as Tomer Conclusions 1 through 4.
Tomer Conclusion 1. With regard to the first statement, the court finds that the concept of a “reasonable maximum for an individual’s one-way commuting time” is unnecessary to deciding the issues in this case and that the statement is, therefore, not material to the issues underlying the Motions for Summary Judgment. The possibility of workers suffering lengthy commuting times due to their revocations is relevant to the plaintiffs’ constitutional theory, but drawing a particular line between what would be a reasonable commute and what would not is simply adding a layer of formality and complexity where none is necessary. Cf. Reese v. CNH Am. LLC, 694 F.3d 681, 686 (6th Cir. 2012) (“[T]he reasonableness inquiry is a vexing one.”); United States v. Marriott, 225 F.3d 660 (table), 2000 WL 1033006, at *1 (6th Cir. July 21, 2000) (“[T]he term ‘reasonable’ is always difficult to define with absolute precision . . . .”). On a motion for summary judgment, “[f]acts are ‘material’ only if establishment thereof might affect the outcome of the lawsuit under governing substantive law.” Rodgers v. Monumental Life Ins. Co., 289 F.3d 442, 448 (6th Cir. 2002) (citing Anderson, 477 U.S. at 248). The constitutional
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theories on which the plaintiffs rely do not require any particular finding about what is or is not a reasonable commute, and, indeed, it is not altogether clear what “reasonableness,” as a factual matter, would mean here. Tomer Conclusion 1, therefore, is not material under Rule 56, and the court is not required to otherwise consider its admissibility.
Tomer Conclusion 2. The second statement that the plaintiffs have offered differs from what Purkey has conceded only in referring to public transit’s being “insufficient as a practical matter . . . to travel to and from work in a reasonable amount of time” as opposed to “inconvenient as a practical matter.” This slight difference in wording, however, has no bearing on the court’s analysis. The court has already taken ample judicial notice of the limitations of public transportation in Tennessee, and there is no need to turn to an expert to realize that, at some point, inconvenience reaches a level where it becomes tantamount to insufficiency. Where that line should be drawn is, like the question of what constitutes a “reasonable” commute, too abstract and undefined an inquiry to bear on the fundamental constitutional questions presented here. The court, accordingly, will disregard Tomer Conclusion 2, as well, as immaterial.
Tomer Conclusion 3. The plaintiffs’ third assertion builds on the first’s discussion of the reasonableness of a 90-minute commute. In this instance, however, the plaintiffs have offered more than an assertion of reasonableness for its own sake: “In Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation.” Here, then, the discussion of reasonableness serves a particular descriptive purpose:
In establishing our model and presenting our data, we used 90 minutes as the cutoff for a “reasonable” amount of time for a one-way commute to work. Or, to put it differently, if an individual could not get to work via transit in an overall time (including, e.g., walking from the bus stop to the office) of 90 minutes or less, we counted that individual as not having a job that was “reasonably available via transit” from where s/he lived.
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(Docket No. 108-3 ¶ 10.) While the court does not need to accept Tomer’s premise that 90 minutes demarcates a reasonable commute from an unreasonable one, Tomer’s explanation does allow the court to consider Tomer Conclusion 3 in terms of its purely factual content. Specifically, Conclusion 3 can simply be reformulated to claim that “[i]n Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not [accessible within 90 minutes] by public transportation.” That assertion plainly meets the threshold of materiality, while avoiding an immaterial and unnecessary detour down the path of defining what is reasonable.
Purkey objects to the court’s consideration of the Tomer Conclusions, first, by reiterating that the Brookings Report is hearsay. As the court held in the First Memorandum, however, the question is not whether the Brookings Report, as a document, is hearsay—which it undisputedly is—but whether facts derived from its underlying analysis can be presented in admissible form in this case. Although the Report is not admissible, it also is no bar to Tomer’s testifying to what he learned during the process of its creation. A fact that appears as hearsay in one document is not somehow barred from ever being uttered again. Moreover, while it is true that many of the facts in the Tomer Declaration are based on Tomer’s review of documents that would, themselves, be hearsay, an expert’s reliance on otherwise inadmissible facts is expressly permitted by the Rules of Evidence as long as “experts in [the witness’s] particular field would reasonably rely on those kinds of facts or data in forming an opinion.” Fed. R. Evid. 703.5
Purkey objects to the Tomer Declaration itself as untimely under Federal Rule of Civil Procedure 6(c)(2), which requires that “[a]ny affidavit supporting a motion must be served with the motion.” The more specific provisions of Rule 56, however, expressly contemplate that a
5 Purkey also objects that the Brookings Report is not a proper expert report under Federal Rule of Evidence 702. The plaintiffs, however, concede that they are not seeking to have the Report accepted as a Rule 702 report. Rather, the Brookings Report was simply the 2011 memorialization of certain work that Tomer himself, with the help of his colleagues, performed, and about which he could testify today.
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court may grant a party the chance to supplement the record in support of a fact offered pursuant to a summary judgment motion:
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials— including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order. The plaintiffs’ offering of the Tomer Declaration was in direct response to an order of the court. Purkey has provided no basis for concluding that the court’s broad power to address unresolved factual issues pursuant to Rule 56 is somehow negated by the general provisions of Rule 6(c)(2). The plaintiffs’ introduction of the Tomer Declaration, therefore, was timely. Finally, Purkey takes issue with the fact that the plaintiffs have only introduced a declaration from Tomer, but not from the other authors of the Brookings Report. Again, Purkey’s focus on the Report qua Report misses what the plaintiffs are—and are not—seeking to put before the court. They are not seeking to introduce the entirety of the Report as admissible, undisputed evidence. They have asserted a few specific facts to which Tomer declares he is capable of testifying, based on his own individual knowledge. They have, moreover, provided biographical evidence of Tomer’s substantial expertise in transit issues, and Purkey has identified no basis for doubting that Tomer would be a qualified expert at trial. There is simply no basis for requiring him to be accompanied by his colleagues in asserting facts to which he, personally, can attest.
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In the court’s Order directing the parties to confer and, if necessary, submit supplemental briefing, the court strongly encouraged Purkey to lodge any factual objections he had to the plaintiffs’ claims, even if he lodged evidentiary objections as well:
If Purkey responds to any fact solely by raising evidentiary objections or objecting to the form of the plaintiffs’ statement, the court will construe Purkey’s response as relying solely on the stated objection to defeat the court’s reliance on the fact asserted and will take the veracity of the fact as conceded pursuant to Local R. 56.01(g). (Docket No. 94 at 3.) Purkey has not disputed Tomer Conclusion 3 on any factual grounds, choosing, instead, to stand solely on his evidentiary objections. Because those objections fail, the court will take it to be conceded that, in Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not accessible by public transportation within 90 minutes. Tomer Conclusion 4. Purkey’s response to Tomer Conclusion 4 is essentially the same as to Tomer Conclusion 3; he focuses almost entirely on the admissibility of the Brookings Report itself, despite the plaintiffs’ having conceded that inadmissibility and proffered a fleshand-blood witness in support of their proffered facts. Accordingly, the court will also take it as conceded that, in Nashville, Knoxville, and Chattanooga, more than two thirds of working-age residents lack access to public transportation. C. Counts I & III: Tennessee’s Revocation Scheme Does Not Survive Rational Basis Review The court has already held that revoking the driver’s licenses of indigent court debtors appears to be counterproductive to the legitimate purpose of collecting on the underlying debt, and that, at some point, a policy becomes so manifestly counterproductive that it fails even the deferential standard of rational basis review. The only outstanding question is whether the undisputed facts show that that is the case here. In light, in particular, of the now-conceded census tabulations suggesting that 92% or more of the workers in each of the state’s major
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metropolitan areas drive to work, the court concludes that the plaintiffs have met their burden.6 Life in Tennessee is a prime example of the fact that, as the Supreme Court has observed, “driving an automobile [is] a virtual necessity for most Americans.” Wooley v. Maynard, 430 U.S. 705, 715, (1977). There is simply no room to doubt that losing the right to drive imposes a major economic hardship on a Tennessean, particularly if he is already indigent.
There is nothing inherently unconstitutional about imposing a harsh sanction, of course, as long as the government has a rational basis for doing so. Accordingly, nothing about the court’s ruling suggests that Tennessee cannot revoke a person’s license because he drove dangerously or showed himself to be incompetent behind the wheel. See Tenn. Code Ann. § 5550-501(a)(1), (3), (6). Nothing suggests that the state cannot revoke a license because a person drove drunk. See Tenn. Code Ann. § 55-50-501(a)(2). Those are rational reasons to take a person’s driving privileges away. Collecting debt from an indigent debtor, on the other hand, is simply not a rational basis for revoking a license. No rational creditor wants his debtor to be sidelined from productive economic life. No rational creditor wants his debtor to be less able to hold a job or cover his other, competing living expenses. A rational creditor might want the benefit of the threat of a license revocation, but nothing that the plaintiffs have argued would deny the state that threat. The state can still use the specter of revocation to encourage payment of court debt; it simply must afford the debtor the opportunity to demonstrate, first, that the only reason he has failed to pay is that he simply cannot.
Purkey or local authorities may complain that there is some expense associated with affording a debtor the opportunity to demonstrate his indigence. That is true, but it is no more true than in any of the other situations covered by the Griffin cases. The need to determine the
6 Indeed, the evidence on this point is so overwhelming that the court’s conclusion would be the same even if it excluded all four Tomer Conclusions.
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indigence of court debtors, moreover, would fit into a preexisting system where such determinations are wholly routine. Even beyond Griffin and its progeny, indigence determinations are already a pervasive and unavoidable feature of the criminal justice system. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778 (1973) (acknowledging right to indigent defense in some probation and parole revocation hearings); Miranda v. Arizona, 384 U.S. 436, 473–74 (1967) (acknowledging right to indigent defense during a custodial interrogation); Gideon vs. Wainwright, 372 U.S. 335, 344–45 (1963) (acknowledging right to indigent defense at trial). Determining a person’s indigence is something that Tennessee courts do thousands of times a year, often in staggering volumes and at a breakneck pace. See Tenn. Admin. Office of the Courts, Tennessee’s Indigent Defense Fund: A Report to the 107th Tennessee General Assembly 11–12 (2011).7 The limited expense of adding one more stage where indigence matters is not enough to render a manifestly irrational legislative scheme rational.
Moreover, insofar as expense alone could justify withholding an indigence determination, that argument would have little relevance to Tennessee’s scheme, because, as Purkey has repeatedly reminded the court, Tennessee drivers facing revocation for unpaid court debt already have established avenues through which they can seek discretionary relief—meaning that the resources needed to consider a debtor’s claim have already been made available. See Tenn. Code Ann. § 40-24-102 (“The several courts in which a cause is finally adjudged are authorized, either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to the county or state.”); Tenn. Code Ann. § 40-24-104(a) (“If the defendant . . . is unable to pay the fine . . . the court . . . may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an
7 Available at http://www.tsc.state.tn.us/sites/default/files/docs/aoc_indigent_defense_fund_report.pdf.
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amount that the defendant is able to pay . . . .”); Tenn. Code Ann. § 40-24-105(h) (“The court is vested with the authority and discretion to order the issuance of a restricted driver license for the purposes specified in subdivision (b)(3)(A).”); Tenn. Code Ann. § 40-25-123(b) (“[T]he presiding judge of a court of general sessions may suspend the court costs and the litigation tax . . . , for any indigent criminal defendant, as in the presiding judge’s opinion the equities of the case require.”).8 When seeking that discretionary relief, moreover, a debtor could make the same indigence arguments that he would make under a scheme satisfying Griffin. The only difference between a Griffin-compliant scheme and what Tennessee already provides is that, under the current law, a court can conclude that a debtor’s sole reason for nonpayment is his indigence and yet still allow the revocation to go forward.9 See State v. Black, 897 S.W.2d 680, 684 (Tenn. 1995); Waters v. Ray, No. M2008-02086-COA-R3-CV, 2009 WL 5173718, at *5 (Tenn. Ct. App. Dec. 29, 2009); State v. Lafever, No. M2003-00506-CCA-R3CD, 2004 WL 193060, at *7 (Tenn. Crim. App. Jan. 30, 2004). Purkey has identified no reason why a scheme with less discretion would somehow pose some significantly greater administrative burden.
“Under rational basis review, the governmental policy at issue ‘will be afforded a strong presumption of validity and must be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate government purpose.’” Midkiff, 409 F.3d at 770 (quoting Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000)). As the Supreme Court has made clear, the actual effect of attaching a price tag to a particular outcome under our criminal justice
8 Emphasis added throughout. 9 Similarly, Purkey has conceded, repeatedly, that a person facing a driver’s license revocation in Tennessee is entitled to a hearing on the revocation, at least eventually. (See, e.g., Docket No. 88 at 19 (“[A]n individual whose driver’s license has been suspended or revoked by the Department has the right to a contested case hearing before an administrative law judge.”); Docket No. 110 at 5 (“[W]hen requested, a driver has an absolute right to a contested case hearing as a matter of law.”)). The issue raised by Count I, then, is not whether the government must expend the resources necessary to allow a person to challenge his revocation. The issue is what grounds are sufficient for the debtor to prevail.
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system is that the system treats indigent and non-indigent defendants differently. Even if such disparate treatment can sometimes be defended as rational, see Johnson, 624 F.3d at 749, no presumption of rationality can stretch far enough to countenance the disparate treatment of indigent and non-indigent defendants when (1) the only goal of the challenged mechanism is ensuring payment of a sum of money and (2) the harsher sanction doled out to the indigent defendant is one that makes paying that sum substantially more difficult.
The Sixth Circuit has acknowledged that even a highly deferential standard of review like rational basis scrutiny may call for a somewhat “heightened” inquiry, if the law at issue targets indigent criminal debtors in a way that threatens to exacerbate their preexisting poverty.10 See Johnson, 624 F.3d at 749 (discussing Strange, 407 U.S. at 135). The Supreme Court has recently acknowledged a principle that might explain such an approach, observing that its admittedly few cases striking down laws as failing rational basis review share “a common thread . . . that the laws at issue lack any purpose other than a ‘bare . . . desire to harm a politically unpopular group.’” Trump v. Hawaii, No. 17-965, 585 U.S. ___, slip op. at 33 (June 26, 2018) (quoting Moreno, 413 U.S. at 534). That combination—a politically unpopular group and a law affirmatively and unjustifiably inflicting harm on them—is undeniably present here. It is difficult to imagine a group more politically unpopular than criminal defendants or less able to protect itself politically than the very poor. Purkey has repeatedly argued that, because those living in poverty have never been formally recognized as a suspect class, the court must ignore such considerations. The Supreme Court’s recent pronouncements should put that argument to rest. See Trump, slip op. at 33 (citing Romer, 517 U. S. at 632 (striking down law targeting gays and
10 The court notes, however, that the law at issue here is so manifestly irrational, that it would fail regardless of whether such a heightened review were called for.
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lesbians under rational basis review); Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448– 50 (1985) (striking down law targeting the intellectually disabled under rational basis review)).
Indeed, the Supreme Court’s recent formulation could hardly have more closely mirrored Judge Moore’s argument, in her Johnson v. Bredesen dissent, that the statute at issue in that case—which, like this one, penalized indigent criminal debtors for their inability to satisfy their debts—was unconstitutional because “[t]he attempt to incentivize payments that an individual is simply incapable of making . . . , particularly when there are other collection methods available, advances no purpose and embodies nothing more than an attempt to exercise unbridled power over a clearly powerless group.” Johnson, 624 F.3d at 757–58 (Moore, J., dissenting). The Johnson majority’s only bulwark against Judge Moore’s reasoning and the governing Supreme Court case law was to respond that the challenged statute was principally directed at those debtors who could pay, and that, while indigent debtors may have been swept into the same scheme, the law at issue at least avoided the especially constitutionally troubling step of further damaging their self-sufficiency. See Johnson, 624 F.3d at 748–49. That argument is unavailable here, where the law is overwhelmingly applied to people on whom it demonstrably has not worked and where the mechanism at issue is one that imposes a profound additional economic hardship. The court, accordingly, will grant summary judgment to the plaintiffs on Count I.
As the court observed in the First Memorandum, the analysis under Count III hinges on much the same facts as Count I. If a driver’s license revocation is a powerful threat to basic selfsufficiency, then the state’s scheme likely runs afoul of James v. Strange; if it is not, then the scheme does not. The undisputed facts have shown that a driver’s license revocation is, indeed, such a threat. The Kansas scheme at issue in Strange was held to be unconstitutional because it singled out debtors who owed money to the government related to their criminal prosecutions
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and imposed on them uniquely harsh collection mechanisms in “such discriminatory fashion” that it “blight[ed]” the “hopes of indigents for self-sufficiency and self-respect.” 407 U.S. at 142–43. That is exactly what Tenn. Code Ann. § 40-24-105(b), by failing to have an exception for indigence, does as well. The court, accordingly, will grant summary judgment to the plaintiffs as to Count III. D. Count II: A Driver Facing Revocation for Nonpayment of Court Debt is Entitled to a Pre-Revocation Hearing on His Ability to Pay
A driver’s license, once issued, is “not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539 (1971) (citing Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969); Goldberg v. Kelly, 397 U.S. 254 (1970)). Because the plaintiffs were entitled to the opportunity to defeat their revocations by demonstrating their indigence, and they received none, their rights to procedural due process have been violated. That alone would warrant a grant of summary judgment on Count II. The question still remains, however, of what process was due to them. Determining what process a person is entitled to in a particular situation requires the consideration of a number of factors:
[1] the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation[;] . . . [3] the probable value, if any, of additional or substitute procedural safeguards; and [4] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The Supreme Court has made clear that a driver’s license is an interest of sufficient importance that a pre-deprivation hearing may sometimes be required but that it is not so important that that will always be the case. Compare Bell, 402 U.S. at 539, with Dixon v. Love, 431 U.S. 105, 115 (1977). Whether a pre-deprivation hearing is necessary, then, is likely to depend upon the latter three factors. “‘[I]t is fundamental[,]’ however, ‘that except in
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emergency situations . . . due process requires that when a State seeks to terminate an interest such as that here involved [a driver’s license], it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.’” Fowler v. Johnson, No. CV 17-11441, 2017 WL 6379676, at *10 (E.D. Mich. Dec. 14, 2017) (quoting Bell, 402 U.S. at 542)).
The court holds that the Eldridge factors strongly support notice and a right to assert one’s indigence prior to revocation here. As the court explained in the First Memorandum, there is every reason to think that a large number of the individuals who face revocation under section 40-24-105(b) are indigent. (First Memorandum at 72.) Affording a debtor the opportunity to establish his indigence prior to revocation, therefore, is likely necessary to avoid a large number of erroneous deprivations. Because section 40-24-105(b) revocations are not safety-related, moreover, the government has relatively little interest in avoiding the slight delay necessary for such a process. See Dixon, 431 U.S. at 114–15 (emphasizing importance of safety rationale in holding that post-deprivation hearings are sufficient). Indeed, a purely post-deprivation indigence process might create a greater administrative burden, because it would require TDSHS to quickly reverse many revocations shortly after they were imposed—whereas a pre-deprivation determination would allow TDSHS to avoid performing unwarranted revocations altogether.
Governments have identified a wide array of mechanisms through which such determinations might be made. One option, of course—although probably not the most expeditious one—would be to hold a full indigence hearing, before a court, for each debtor seeking an exception. See, e.g., Tenn. Code Ann. § 40-14-202(b) (providing that, in the context of appointment of counsel, “[w]henever an accused informs the court that the accused is financially unable to obtain the assistance of counsel, it is the duty of the court to conduct a full
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and complete hearing as to the financial ability of the accused to obtain the assistance of counsel and, thereafter, make a finding as to the indigency of the accused.”); but see David Louis Raybin, 9 Tenn. Prac. Crim. Prac. & Procedure § 5:7 (“The mechanics of determining indigency vary from court to court . . . .”). In the alternative, however, a court may simply ask for an indigence affidavit, and embark on a further inquiry only if the affidavit is facially inadequate or is opposed. See, e.g., Tex. R. App. P. 20.1 (“A party who filed a Statement of Inability to Afford Payment of Court Costs in the trial court is not required to pay costs in the appellate court unless the trial court overruled the party’s claim of indigence in an order that complies with Texas Rule of Civil Procedure 145.”); Tex. R. Civ. P. 145(d) (“The clerk may refuse to file a Statement that is not sworn to before a notary or made under penalty of perjury. No other defect is a ground for refusing to file a Statement or requiring the party to pay costs. If a defect or omission in a Statement is material, the court—on its own motion or on motion of the clerk or any party—may direct the declarant to correct or clarify the Statement.”); Tex. R. Civ. P. 145(f)(1) (“The clerk or any party may move to require the declarant to pay costs only if the motion contains sworn evidence, not merely on information or belief . . . that the Statement was materially false when it was made; or . . . that because of changed circumstances, the Statement is no longer true in material respects.”). Moreover, where, as here, an agency action is involved, it may not be necessary for a court to make an initial indigence determination at all, as a process for making such determinations can be put in place at the administrative level. See W. Va. Code Ann. § 17C5A-3(e), (j)(1) (discussing agency process for determining indigence with regard to certain fees related to driver’s license restoration, including promulgation of “criteria for determining eligibility of indigent offenders, and any necessary application forms”).
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As the Supreme Court has observed, when a state’s existing procedures are held to violate due process, the state’s “alternative methods of compliance are several” and its “area of choice is wide.” Bell, 402 U.S. at 543. Tennessee’s scheme currently requires revocation with no consideration of indigence and, therefore, violates the Constitution and will continue to do so unless altered or supplemented by additional procedures. The state, of course, is under no obligation to replace its current scheme if the relevant decision makers conclude that other mechanisms for debt collection are preferable. See id. (“Indeed, Georgia may elect to abandon its present scheme completely and pursue one of the various alternatives in force in other States.”). Insofar as the state may wish to pursue a modified system of revocation, however, the court will not unduly restrict the options available. The court can require the state to comply with the Constitution, but it cannot, at least at this stage, force it to choose one mechanism for doing so over another. Nor will the court venture into pre-judging the constitutionality of processes that do not yet exist.
The court, accordingly, will grant the plaintiffs summary judgment on Count II and hold that a driver facing revocation for nonpayment of court debt is entitled to a pre-revocation notice and determination related to his indigence. The court will not, however, unnecessarily narrow the potentially permissible options for complying with that edict. E. Remedy
The plaintiffs have requested that the court grant the following relief: 11 b. Declare that the Statute [Tenn. Code Ann. § 40-24-105(b)] violates the
Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; c. Enjoin Defendants from revoking driver’s licenses pursuant to the Statute and enjoin Defendants to (i) reinstate all driver’s licenses that have been revoked pursuant to the Statute; (ii) waive all reinstatement fees for people 11 Item ‘a’ of this list, certification of the class, has already been granted.
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whose driver’s licenses were revoked pursuant to the Statute; (iii) notify all persons whose licenses were revoked of their reinstatement; (iv) and provide an accounting of all reinstatements made; d. Award litigation costs and reasonable attorney’s fees, as provided by 42 U.S.C. § 1988; and e. Order such other and further relief as the Court deems just and proper. (Docket No. 1 at 17–18.) With regard to the requested declaratory relief, the plaintiffs’ right to the relief requested is apparent. The same is true with regard to their right to have revocations under Tenn. Code Ann. § 40-24-105(b) enjoined going forward. The statute is mandatory in operation and fails to provide the required substantive and procedural safeguards needed to protect indigent debtors; its application, therefore, must be enjoined, at least until some process is enacted to grant the rights to which debtors are entitled. Less clear, however, is how the court should treat the drivers whose licenses have already been revoked. The Complaint asks that those licenses simply be reinstated. It is not apparent to the court, however, that every person under a revocation would or should have an automatic right to drive again, even if his revocation is lifted. Some such drivers may face other revocations or suspensions on other grounds. Others may simply be overdue for a license renewal. At this stage, moreover, the court simply lacks a record regarding the process of identifying the affected drivers, lifting their revocations, and allowing them to receive their licenses again. The court, accordingly, will order Purkey to submit a plan, within 60 days, for lifting the revocations of drivers whose licenses were revoked under Tenn. Code Ann. § 40-24-105(b) and providing an appropriate process for reinstatement. In the meantime, the court will order Purkey and his agency not to prevent any driver who seeks to have his revocation lifted from doing so based solely on his failure to have paid his court debt or his failure to pay reinstatement fees. Purkey is
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encouraged to consult with the plaintiffs in crafting the plan for lifting revocations, and the plaintiffs will be afforded the opportunity to respond to the plan he files with the court.
IV. CONCLUSION For the foregoing reasons, Purkey’s Motion for Summary Judgment (Docket No. 61) will be denied, and the plaintiffs’ Motion for Summary Judgment (Docket No. 36) will be granted. The court will grant judgment in favor of the plaintiff class and order Purkey to submit a plan for bringing TDSHS into compliance with the court’s judgment. An appropriate order will enter. ENTER this 2nd day of July 2018.
______________________________ ALETA A. TRAUGER United States District Judge
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Appendix Case 3:17-cv-00005 Document 113 Filed 07/02/18 Page 33 of 112 PageID #: 1224

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES THOMAS and DAVID HIXSON, )

)

Plaintiffs,

)

)

v.

)

)

BILL HASLAM, Governor of Tennessee, )

in his official capacity; DAVID W.

)

PURKEY, Commissioner for the

)

Department of Safety and Homeland

)

Security, in his official capacity; and

)

HERBERY SLATERY, III, Attorney

)

General and Reporter, in his official

)

capacity,

)

)

Defendants.

)

Case No. 3:17-cv-00005 Judge Aleta A. Trauger

MEMORANDUM

Pending before the court are a Motion to Dismiss (Docket No. 23) and Motion for

Summary Judgment (Docket No. 61) filed by the sole remaining defendant in this matter, David

W. Purkey, the Commissioner of the Tennessee Department of Safety and Homeland Security

(“TDSHS”), as well as a Renewed Motion for Class Certification (Docket No. 36) and a Motion

for Summary Judgment (Docket No. 37) filed by the plaintiffs, James Thomas and David

Hixson. For the reasons set forth herein, the Motion to Dismiss will be denied and the Motion for

Class Certification will be granted. The Motions for Summary Judgment will be held in

abeyance pending supplemental briefing, as directed in the accompanying order.

I. BACKGROUND AND PROCEDURAL HISTORY

Thomas and Hixson are among the thousands of Tennesseans who owe fines, costs, or

litigation taxes related to their passage through the state’s criminal justice system. (See Docket

No. 40 ¶ 43.) By statute, TDSHS revokes the driver’s license of any person who, like Thomas

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and Hixson, has failed to pay those fines, costs, or litigation taxes for a year or more, unless that person is granted a form of discretionary relief by a court. See Tenn. Code Ann. § 40-24-105(b). Thomas and Hixson sue on behalf of themselves and a not fully known number of similarly situated Tennesseans who, they argue, have had their right to drive taken away solely based on the fact that they are indigent and therefore cannot pay the fines, costs, and litigation taxes imposed on them. A. “Court Debt”
Thomas and Hixson characterize this case as about “court debt,” a somewhat opaque term that does not itself appear in any of the statutes at issue. Although Purkey takes particular issue with the term, the specific terminology that one uses to discuss the issue is of fairly little importance. A person who passes through the criminal justice system may incur a number of different payment obligations, assessed in different amounts for different reasons, and “court debt” is merely a shorthand for the particular payment obligations at issue here. For the purposes of this opinion, “court debt” will refer to fines, costs, and litigation taxes assessed against a defendant who either (1) pleads guilty to a misdemeanor or felony, (2) is convicted of a misdemeanor or felony following trial, or (3) agrees to incur liability for fines, costs and/or litigation taxes based on an agreement with a prosecutor for the charges brought against the defendant to be dismissed “on costs.” (See Docket No. 64 ¶ 9.)
1. Fines A person convicted of a felony or misdemeanor in Tennessee may be sentenced to “[p]ayment of a fine either alone or in addition to any other sentence authorized by” the penal laws of the state. Tenn. Code Ann. § 40-35-104(c)(1). “[T]he defendant’s ability to pay the fine is a factor in the establishment of the fine,” but “it is not a controlling factor.” State v. Butler,
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108 S.W.3d 845, 854 (Tenn. 2003) (citing Tenn. Code Ann. § 40-35-207(a)(7)). The court imposing a fine is permitted to choose from a number of options regarding the timeline for payment:
When any court of this state . . . imposes a fine upon an individual, the court may direct as follows: (1) That the defendant pay the entire amount at the time sentence is
pronounced; (2) That the defendant pay the entire amount at some later date; (3) That the defendant pay the fine in specified portions or installments at
designated periodic intervals and that the portions be remitted to a designated official, who shall report to the court in the event of any failure to comply with the order; or (4) Where the defendant is sentenced to a period of probation as well as a fine, that payment of the fine be a condition of the sentence. Tenn. Code Ann. § 40-24-101(a). A court that imposes a fine retains jurisdiction and is empowered to release the fine, in whole or in part, “for good cause.” Tenn. Code Ann. § 40-24102; see also Tenn. Code Ann. § 40-24-104(a) (permitting court to waive all or portion of fine or revise payment schedule based on defendant’s inability to pay). Purkey admits that, depending on the case, fines “can range from $50 to multiple thousands of dollars.” (Docket No. 64 ¶ 12; see also Docket No. 40 ¶ 11 (stipulating same).) 2. Court Costs Tennessee requires that, generally speaking, “[a] defendant convicted of a criminal offense shall pay all the costs that have accrued in the cause.” Tenn. Code Ann. § 40-25-123(a). “Costs” are defined to include “all costs accruing under existing laws on behalf of the state or county, as the case may be, for the faithful prosecution and safekeeping of the defendant, including the cost of boarding juries and that of the jailer,” Tenn. Code Ann. § 40-25-133, as
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well as “all costs incident to the arrest and safekeeping of the defendant, before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence of the court into effect,” Tenn. Code Ann. § 40-25-104.
The procedures related to court costs vary, depending on the court in which a verdict is entered. Some, but not all, misdemeanor prosecutions are resolved in general sessions court. See Tenn. Code Ann. § 40-1-109 (explaining general sessions jurisdiction over certain misdemeanor matters). “[T]he presiding judge of a court of general sessions may suspend the court costs . . . for any indigent criminal defendant, as in the presiding judge’s opinion the equities of the case require.” Tenn. Code Ann. § 40-25-123. The Tennessee Supreme Court has held that, even after a finding of indigency, “the decision of whether to grant a waiver of costs still rests within the court’s discretion.” State v. Black, 897 S.W.2d 680, 684 (Tenn. 1995); see also Waters v. Ray, No. M2008-02086-COA-R3-CV, 2009 WL 5173718, at *5 (Tenn. Ct. App. Dec. 29, 2009) (endorsing holding of Black).
Felonies, as well as the misdemeanors not resolved in general sessions, are tried or otherwise resolved in criminal courts or circuit courts. See Tenn. Code Ann. §§ 40-1-108, 16-10102. The statutory terms pursuant to which a person in criminal or circuit court may seek relief from costs have been recently amended, with the amendments having gone into effect on January 1, 2018. See 2017 Tenn. Pub. Acts, ch. 412 (S.B. 802). A person who is “unable to pay all of the assessed litigation taxes, court costs, and fines but is able to pay some of them” may apply to the court of his conviction for a payment plan that would expressly shield him from the revocation of his driver’s license:
A person who is unable to pay all of the assessed litigation taxes, court costs, and fines but is able to pay some of them may apply to the court having original jurisdiction over the offense for an order setting up a payment plan for such taxes, costs, and fines. If the person and court agree to such a payment plan, the court
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shall so order and such order shall have the effect of staying the revocation of the license pursuant to this subsection (b). The order staying the revocation of license shall remain in effect for as long as the person is current and in compliance with the payment plan. Tenn. Code Ann. § 40-24-105(b)(4)(A). If the person is granted a payment plan and fails to make payments thereunder “for three (3) consecutive months without good cause, the court may revoke the order and notify the clerk.” Id. A version of that payment plan provision existed prior to the January 1, 2018 amendment. See Tenn. Code Ann. § 40-24-105(b)(4) (2017). The 2018 amendment added an additional subsection providing that a person who is indigent “may . . . apply for the waiver of any outstanding court costs and fines.” Tenn. Code Ann. § 40-24-105(b)(4)(B). A person seeking a waiver must provide an affidavit of indigency and pay a $50 fee, “subject to the discretion of the court after consideration of the person’s ability to pay.” Tenn. Code Ann. § 40-24-105(b)(4)(B)(i)–(ii). “After consideration of the affidavit of indigency and the payment of any fee that may be required . . . , the court may waive any outstanding court costs and fines.” Tenn. Code Ann. § 40-24-105(b)(4)(C). Because this provision is fairly new, it has not been widely construed. The court notes, however, that its waiver provision appears to be permissive in nature, using “may” instead of “shall” or similar language. In response to the plaintiffs’ assertion that the statute, as amended, makes the decision to offer relief entirely discretionary for the court, Purkey admits that “the text of Tenn. Code Ann. § 40-24-105(b) . . . speaks for itself.” (Docket No. 64 ¶ 51.) 3. Litigation Tax Tennessee’s constitution grants the General Assembly a number of specific powers of taxation, including the “power to tax . . . privileges.” Tenn. Const. art. II, § 28. Pursuant to that power, the state levies “privilege tax[es] on litigation” in various amounts, depending on the type of case at issue. Tenn. Code Ann. § 67-4-602. For example, “[t]here is levied a privilege tax on
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litigation of seventeen dollars and seventy-five cents ($17.75) in all civil cases in this state in general sessions court, when not exercising state court jurisdiction,” and a “a privilege tax on litigation of thirteen dollars and seventy-five cents ($13.75) in all civil cases in this state in the court of appeals or the supreme court.” Tenn. Code Ann. § 67-4-602(c), (d). In criminal cases, “[t]here is levied a privilege tax on litigation instituted in this state, of twenty-nine dollars and fifty cents ($29.50) on all criminal charges, upon conviction or by order.” Tenn. Code Ann. § 674-602(a).
Just as the amount of the tax varies between different types of cases, so too does the issue of when the litigation tax becomes due. See, e.g., Tenn. Code Ann. § 67-4-603(a)(1) (directing the clerk to collect tax “[u]pon the commencement of an original civil action, from the plaintiff, except when such action is brought pursuant to a pauper’s oath”); (a)(3) (directing the clerk to collect tax “[u]pon the filing in any civil action of an appeal, or of an appeal in the nature of a writ of error or certiorari, from one court to another, from the appellant, except when such appeal is brought pursuant to a pauper’s oath”). In a criminal case, the tax is due “[u]pon a finding of guilt, plea of guilty, or submission to fine in a criminal action from the defendant.” Tenn. Code Ann. § 67-4-603(a)(2).
The collection of litigation taxes is delegated to “[t]he clerks of the various courts” in which litigation takes place. Tenn. Code Ann. § 67-4-603(a). The clerk then has an obligation to remit the state litigation tax to Tennessee’s department of revenue. If the clerk fails to transmit the tax collected, the amount improperly withheld “shall be a debt of the clerk.” Tenn. Code Ann. § 67-4-605(a)(1).
Counties and municipalities are also given authority to levy certain “local litigation tax[es]” devoted to specific, statutorily defined purposes, including building or upgrading the
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jails and workhouses, Tenn. Code Ann. § 67-4-601(b)(1); purchasing and maintaining hardware
and software related to record keeping, Tenn. Code Ann. § 67-4-601(b)(7)(B); providing security
to courthouses, Tenn. Code Ann. § 67-4-601(b)(6); and “substance abuse prevention purposes,”
Tenn. Code Ann. § 67-4-601(h).
Tennessee’s statutory scheme contemplates that, in some instances, a court may grant a
litigant some manner of relief from litigation taxes. The precise circumstances of when that relief
should or will be granted, however, are not set forth in the relevant statute:
If the judge of any court suspends, releases, waives, remits or orders the clerk of the court not to collect any privilege tax on litigation, or in any other manner releases any party from liability for any privilege tax on litigation, the clerk of the court shall immediately report such suspension, release, waiver, remission, or order to not collect such tax, to the department in such manner as shall be prescribed by the department, and the commissioner or the commissioner’s delegate shall immediately, upon receipt of such a report from any clerk of a court, present such information to the board of judicial conduct, which court shall take appropriate action pursuant to title 17, chapter 5. The commissioner or the commissioner’s delegate shall also report such information to the council on pensions and insurance.
Tenn. Code Ann. § 67-4-605(c). Purkey admits that, depending on the case, “litigation taxes and
court costs can range from about $200 at the low end to more than $10,000.” (Docket No. 64 ¶
11; see also Docket No. 40 ¶ 11 (stipulating same).)
B. Mechanisms for Collecting Court Debt
If an individual fails to pay fines, court costs, or litigation taxes, the court and state have a
number of options. First, the state or court can resort to the ordinary tools of collection available
to other litigants in the state’s courts. “[A] fine may be collected in the same manner as a
judgment in a civil action.” Tenn. Code Ann. § 40-24-105(a). The same is true for costs and
litigation taxes: “The district attorney general or the county or municipal attorney, as applicable,
may, in that person’s discretion, and shall, upon order of the court, institute proceedings to
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collect the fine, costs and litigation taxes as a civil judgment.” Tenn. Code Ann. § 40-24-105(c). The collection tools related to civil judgments remain available for all three types of court debt after the defendant’s sentence is complete and the sentencing court loses its original jurisdiction:
If any fine, costs or litigation taxes assessed against the defendant in a criminal case remain in default when the defendant is released from the sentence imposed, the sentence expires or the criminal court otherwise loses jurisdiction over the defendant, the sentencing judge, clerk or district attorney general may have the amount remaining in default converted to a civil judgment pursuant to the Tennessee Rules of Civil Procedure. The judgment may be enforced as is provided in this section or in any other manner authorized by law for a civil judgment. Tenn. Code Ann. § 40-24-105(f). Tennessee affords a number of tools to judgment creditors in civil actions, namely garnishment of wages or other sources of income, Tenn. R. Civ. P. 69.05, execution on realty, Tenn. R. Civ. P. 69.07, and execution on personalty, Tenn. R. Civ. P. 69.06. See also Tenn. Op. Att’y Gen. No. 06-135 (Aug. 21, 2006) (discussing application of Rule 69 collection mechanisms in criminal cases). Neither the court nor the state, moreover, is forced to rely purely on its own personnel or attention to effect collection. “After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes.” Tenn. Code Ann. § 40-24-105(d)(1). Similarly, “[t]he governing body of any municipality may by ordinance authorize the employment of a collection agency to collect fines and costs assessed by the municipal court where the fines and costs have not been collected within sixty (60) days after they were due.” Tenn. Code Ann. § 40-24-105(e)(1). If traditional collection methods are insufficient, more coercive options are available, in particular with regard to fines. Prior to 2007, Tennessee statutes did not expressly contemplate
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that a person could be held in contempt for failure to pay a fine. (Docket No. 64 ¶¶ 18–19.) That year, the General Assembly adopted a provision stating that the court that imposes a fine also has the option of holding a person who has failed to pay in “contempt upon a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay.” Tenn. Code Ann. § 40-24-105. C. Revocation of Drivers’ Licenses for Nonpayment of Court Debt
At issue in this case, however, is one particular consequence of the failure to pay court debt: the revocation of the debtor’s driver’s license. The State of Tennessee generally prohibits drivers from using its highways without a license. Tenn. Code Ann. § 55-50-301(a)(1). That licensure scheme is administered by the TDSHS pursuant to Tennessee’s Uniform Classified and Commercial Driver License Act, Tenn. Code Ann. § 55-50-201 et seq. An applicant for a Tennessee driver’s license must furnish certain required information confirming his eligibility and submit to an examination, including “an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle.” Tenn. Code Ann. §§ 55-50-321, 5550-322(a)(1)(A). In certain statutorily prescribed situations, however, an individual who has previously obtained a valid driver’s license may have the associated privileges rescinded, through revocation, suspension, or cancellation of the license. See, e.g., Tenn. Code Ann. §§ 5550-501, 55-50-502(a) & (b).
Prior to 2011, a person’s failure to pay fines, costs, and litigation taxes had no bearing on the possible revocation of a Tennessee driver’s license. (Docket No. 64 ¶¶ 14, 16–17.) That year, the Tennessee General Assembly enacted the provision that is now codified as Tenn. Code Ann. § 40-24-105(b)(1):
A license issued under title 55 for any operator or chauffeur shall be revoked by the commissioner of safety if the licensee has not paid all litigation taxes, court
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costs, and fines assessed as a result of disposition of any offense under the criminal laws of this state within one (1) year of the date of disposition of the offense. The license shall remain revoked until such time as the person whose license has been revoked provides proof to the commissioner of safety that all litigation taxes, court costs, and fines have been paid.
Tenn. Code Ann. § 40-24-105(b)(1). Purkey admits that, from July 1, 2012, to June 1, 2016,
TDSHS revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes.
(Docket No. 64 ¶ 107.) Over the same period, only 10,750 people whose licenses were revoked
for non-payment of fines, costs, or litigation taxes pursuant to section 40-24-105(b)—about 7%
of the total number—had their licenses reinstated. (Id. ¶ 108; see also Docket No. 40 ¶¶ 43–44
(stipulating to statistics).)
A driver facing the revocation of his license pursuant to Tenn. Code Ann. 40-24-
105(b)(1) may seek a single, 180-day stay of the revocation from the court having original
jurisdiction over the underlying offense. Tenn. Code Ann. § 40-24-105(b)(3)(A). The statute
characterizes this time-limited stay as a “hardship exception.” Tenn. Code Ann. § 40-24-
105(b)(3)(B). Pursuant to the statute:
Grounds for finding of hardship are limited to travel necessary for: (i) Employment; (ii) School; (iii) Religious worship; (iv) Participation in a recovery court, which includes drug courts under the Drug Court Treatment Act of 2003, compiled in title 16, chapter 22; DUI courts; mental health courts; and veterans treatment courts; (v) Serious illness of the person or an immediate family member; or (vi) Other reasons or destinations as determined by the court.
Tenn. Code Ann. § 40-24-105(b)(3)(A). The amendments going into effect in January 2018 also
added a subsection permitting a person whose license was revoked for nonpayment of court debt
to apply to the trial court for the issuance of a restricted license for the purposes of engaging in
the types of driving identified in the hardship exception, with the license issued under the new
subsection not being limited to 180 days. Tenn. Code Ann. § 40-24-105(h). The issuance of a
restricted license under the new provision, however, is within the “authority and discretion” of
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the court. Id. (See also Docket No. 40 ¶ 38 (stipulating that relief under § 40-24-105(h) is discretionary).) A driver who obtains an order permitting him to receive a restricted license pursuant to section 40-24-105(h) must pay a $65 fee to TDSHS to obtain the license. A section 40-24-105(h) license is valid for one year, after which the driver may seek renewal. In contrast, an ordinary driver’s license is issued for eight years and costs $28. (Docket No. 64 ¶¶ 55–57.)
Because litigation taxes, court costs, and fines are assessed at the local level, but drivers are licensed at the state level, the administration of section 40-24-105(b) requires coordination between the respective units of government. Pursuant to section 40-24-105(b)(2), “[t]he clerk of the court ordering disposition of an offense shall notify the commissioner of safety when an offender has litigation taxes, court costs, and fines that remain unpaid after one (1) year from the disposition of the offense,” at which point the commissioner is required by statute to revoke the license. An individual may be treated as having a revoked license, even if he was not licensed to drive by the State of Tennessee as an initial matter; TDSHS simply assigns such a person a driver’s license number and classifies the corresponding “license” as revoked. (Docket No. 64 ¶ 31.)
Purkey admits that, when his office receives notification from a clerk of court that an individual qualifies for revocation of his license, “the Department revokes a person’s driver’s license on the same day that it receives notification of non-payment from the court.” (Docket No. 64 ¶ 28.) However, he draws a distinction between when a license is “effective” and when the “status” of the debtor’s license is changed: “[W]hile revocation is effective as of the date that notification is [sent]1 to the driver by the Department, the Department does not change the status of the driver’s license for a period of 10 days in order to allow the driver to receive notification
1 Purkey uses the word “set” here, but the court presumes that this is a typographical error.
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from the Department.” (Id.; see also Docket No. 62-4 (Declaration of Randi Cortazar) ¶ 2 (“While revocations are effective as of the date the notification is [sent] to the driver, the Department does not change the status of the driver’s license for a period of 10 days in order to allow the driver to receive notification from the Department”).) Purkey admits that TDSHS “does not send pre-revocation notices to the people whose licenses will be revoked pursuant to Tenn. Code. Ann. § 40-24-105(b) for failure to pay their restitution, litigation taxes, fines, and/or court costs” but maintains that TDSHS “sends out proposed notices2 of suspension or revocation the day information is received from the court.” (Docket No. 64 ¶ 34 (quoting Docket No. 39-2 (E-mail from Jenny C. Taylor to Joshua Van Kirk).)
A driver whose license has been revoked is required to pay “[a] sixty-five-dollar restoration fee . . . , unless otherwise specified by law, for each and every offense committed that provides for the revocation . . . of driving privileges.” Tenn. Code Ann. § 55-12-129(b). TDSHS is permitted to adopt payment plans for restoration fees in excess of a certain amount set by Purkey. Tenn. Code Ann. § 55-12-129(g)(1). TDSHS currently permits payment plans only for drivers “whose reinstatement fee totals more than two hundred dollars ($200).” Tenn. Comp. R. & Regs. 1340-02-05-.02.
For the first offense, driving on a revoked license is a Class B Misdemeanor, punishable by up to six months in jail, a fine of up to $500, or both. Tenn. Code Ann. §§ 40-35-111(e)(2), 55-50-504(a)(1). For second and subsequent offenses, driving on a revoked license is a Class A Misdemeanor, punishable by up to 11 months and 29 days in jail, a fine of up to $2,500, or both. Tenn. Code Ann. §§ 40-35-111(e)(1), 55-50-504(a)(2). Purkey concedes that a person’s conviction for driving on a revoked license may lead to the imposition of additional fines, costs, and litigation taxes. (Docket No. 64 ¶ 111.) 2 It is not entirely clear what Purkey means by this “proposed notice.”
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D. Circumstances of the Plaintiffs’ Revocations 1. Thomas James Thomas is a 48-year-old resident of Nashville. He has multiple serious disabilities
and his only income consists of Supplemental Security Income (“SSI”) and Supplemental Nutrition Assistance Program (“SNAP”) benefits. (Docket No. 64 ¶ 60.) In 2013, Thomas was charged with criminal trespass in Davidson County after taking shelter under a bridge during the rain while homeless. (Id. ¶ 64.) Thomas represented himself pro se, pled guilty, and was given a thirty-day suspended sentence and assessed $289.70 in court costs. Purkey concedes, for the purposes of summary judgment, that, on the day of his guilty plea, Thomas went to the clerk’s office and advised the clerk that he was unable to pay the court costs because he was homeless and had no money. (Id. ¶ 66.)
For the three years following his guilty plea, Thomas did not hear anything further about his court debt. (Docket No. 64 ¶ 67.) The Financial Responsibility Section of TDSHS had issued a letter, dated December 2, 2014, to Thomas at a Nashville address informing him:
Pursuant to [Tenn. Code Ann.] § 40-24-105, your motor vehicle driver license, driving privileges, and privilege to obtain a license in the state of Tennessee are revoked for failure to pay litigation taxes, court costs, and fines assessed by the court in DAVIDSON COUNTY. You are to mail your Tennessee Driver License to the address given at the end of this notice, or surrender it at any office of the Tennessee Highway Patrol or Driver Services Center in Tennessee. (Docket No. 62-5.) For purposes of summary judgment, however, Purkey concedes that Thomas never received written notice of his revocation. (Docket No. 89 ¶ 11.) In October 2016, Thomas sought to apply for a Tennessee driver’s license, only to learn that he was prevented from doing so by a license revocation related to his unpaid costs. (Id. ¶ 61.) Purkey admits, for summary judgment purposes, that Thomas “currently survives on very limited subsistence income for people who are totally and permanently disabled” and “cannot afford to pay the $289.70 in Court
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Debt, the $65 reinstatement fee, and the additional application fee necessary to regain his driving privileges.” (Id. ¶ 71.)
2. Hixson David Hixson is a 50-year-old resident of Nashville. When he filed this case, he was living in a homeless shelter. Thereafter, Hixson moved into private housing, but he was unable to make his rental payments and, as of the time he filed his statement of undisputed material facts, was living in a tent. (Id. ¶¶ 74–76.) His driver’s license was revoked in 2014 for failure to pay court debt related, at least in part, to a criminal conviction in Washington County.3 Purkey admits, for summary judgment purposes, that, when Hixson accrued the court debt, he was incarcerated and unable to pay. (Id. ¶ 77.) TDSHS revocation notice letters appear to have been generated and issued for Hixson on two occasions (Docket Nos. 62-6 & -7), although Purkey concedes, for purposes of summary judgment, that Hixson never received those letters (Docket No. 89 ¶ 10). Hixson now works part-time as a vehicle emissions inspector, but he struggles to afford basic necessities. (Docket No. 64 ¶ 81.) Hixson claims that he is generally qualified to work as a motorcycle mechanic, but he cannot do so due to his lack of a driver’s license. (Id. ¶¶ 82–85.) He identifies a total of $2,583.80 of court debt, for which he remains liable, in addition to the fees he would be required to pay to have his license reinstated. (Id. ¶ 88.) E. Procedural History Thomas and Hixson filed their Complaint in this matter on January 4, 2017, naming Purkey, as well as Tennessee’s Governor and Attorney General, as defendants in their official
3 The parties devote a substantial amount of time and effort to arguing over the details of Hixson’s criminal record and the circumstances in which he accrued his court debt and faced a revocation. None of those disagreements, however, negates the fundamental allegations of his claim, namely that he is indigent and that his license was revoked for nonpayment of court debt. The court, accordingly, will not pass further judgment on any of those contested background facts here.
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capacities. (Docket No. 1.) Thomas and Hixson seek to represent a class defined as “[a]ll persons whose Tennessee driver’s licenses have been or will be revoked pursuant to the Statute [Tenn. Code Ann. § 40-24-105(b)] and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances.” (Id. ¶ 93.) They plead three causes of action under 42 U.S.C. § 1983: first, for violation of due process and equal protection rights by the “mandatory revocation of people’s driver’s licenses because they are too poor to pay Court Debt without any inquiry into their ability to pay” (Id. ¶ 100); second, for violation of their due process right to notice and a hearing on whether they can pay their court debt (Id. ¶ 101); and third, for violation of equal protection based on Tennessee’s policy of revoking the licenses of court debtors and not other debtors (Id. ¶ 102).
Purkey filed a Motion to Dismiss and Defer Issues Related to Class Certification on March 3, 2017. (Docket No. 23.) Thomas and Hixson filed a Renewed Motion for Class Certification (Docket No. 36) and a Motion for Summary Judgment (Docket No. 37) on August 18, 2017. On October 10, 2016, the named defendants other than Purkey were dismissed without prejudice upon the agreement of the parties. (Docket No. 55.) Purkey filed a Motion for Summary Judgment on November 6, 2017 (Docket No. 61), which repeats and adds to the arguments raised in his motion to dismiss.
II. LEGAL STANDARD A. Motion to Dismiss
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
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F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556. B. Motion for Summary Judgment
Rule 56 requires the court to grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To win summary judgment as to the claim of an adverse party, a moving defendant must show that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim. Once the moving defendant makes its initial showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren,
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578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “the judge’s function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 249. An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252). C. Motion to Certify Class
The principal purpose of class actions is to achieve efficiency and economy of litigation, both with respect to the parties and the courts. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 159, (1982). The Supreme Court has observed that, as an exception to the usual rule that litigation is conducted by and on behalf of individual named parties, “[c]lass relief is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’ and when they ‘turn on questions of law applicable in the same manner to each member of the class.’” Id. at 155 (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). The Court directs that, before certifying a class, district courts must conduct a “rigorous analysis” of the prerequisites of Rule 23 of the Federal Rules of Civil Procedure. Falcon, 457 U.S. at 161. The Sixth Circuit has stated that district courts have broad discretion in deciding whether to certify a class, but that courts must exercise that
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discretion within the framework of Rule 23. Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).
Although a court considering class certification may not inquire into the merits of the underlying claim, a class action may not be certified merely on the basis of its designation as such in the pleadings. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); In re Am. Med. Sys., Inc., 75 F.3d at 1079. In evaluating whether class certification is appropriate, “it may be necessary for the court to probe behind the pleadings,” as the issues concerning whether it is appropriate to certify a class are often “enmeshed” within the legal and factual considerations raised by the litigation. Falcon, 457 U.S. at 160; see also In re Am. Med. Sys., Inc., 75 F.3d at 1079; Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974). Moreover, the party seeking class certification bears the burden of establishing that the requisites are met. See Alkire v. Irving, 330 F.3d 802, 820 (6th Cir. 2003); Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976).
III. ANALYSIS A. Rooker-Feldman
Purkey argues first that, pursuant to the Rooker-Feldman doctrine, this court lacks subject matter jurisdiction over the claims in this case. He argues that Thomas and Hixson are basically seeking relief from the underlying state court judgments against them, which amounts to an impermissible intrusion on the state court process. Thomas and Hixson counter that they do not challenge any state court judgment, but rather TDSHS’s revocation of their driver’s licenses alone. Thomas and Hixson contend that they do not seek to set their court debt aside or challenge any aspect of their convictions. Rather, they are challenging only a specific statutory
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consequence of their continuing inability to pay the amounts assessed against them, as administered by TDSHS.
The Rooker-Feldman doctrine is derived from two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Rooker-Feldman, as a principle, stands for the proposition that a federal district court lacks subject matter jurisdiction to conduct an appellate review of a state court decision. Pittman v. Cuyahoga Cty. Dep’t of Children and Family Servs., 241 F. App’x 285, 287 (6th Cir. 2007). By the same token, a federal court cannot issue injunctive relief that would, as a practical matter, amount to an exercise of the interjurisdictional appellate function that RookerFeldman forbids. See Lawrence v. Welch, 531 F.3d 364, 371–72 (6th Cir. 2008) (“[C]laims seeking injunctive relief are barred by Rooker-Feldman if they necessarily require the federal court to determine that a state court judgment was erroneously entered.”).
However, the Rooker-Feldman doctrine is “not a panacea to be applied whenever state court decisions and federal court decisions potentially or actually overlap.” McCormick v. Braverman, 451 F.3d 382, 395 (6th Cir. 2006); see also Givens v. Homecomings Fin., 278 F. App’x 607, 609 (6th Cir. 2008) (referring to the “narrow range of cases” implicated by RookerFeldman). The Supreme Court has stated that Rooker-Feldman “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court 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). The Sixth Circuit, accordingly, has “distinguished between plaintiffs who bring an impermissible attack on a state court judgment— situations in which Rooker-Feldman applies—and plaintiffs who assert independent claims
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before the district court—situations in which Rooker-Feldman does not apply.” Pittman, 241 F. App’x at 287.
In making this distinction, the court must look to “the source of the injury the plaintiff alleges in the federal complaint. If the source of the injury is the state court decision,” then the Rooker-Feldman doctrine prevents the federal court from deciding the case. McCormick, 451 F.3d at 393. “If,” however, “there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim.” Id. The court must decide whether it is being called on to consider whether the state court judgment “in and of [itself] violate[s] the federal Constitution or federal law,” or whether the complaining party bases its argument on some unlawful action or policy outside the four corners of that judgment. Id. at 392. “The appropriate inquiry is not whether the district court would be required to ‘overrule’ in some technical way the state court judgment, but is instead whether the constitutional claim presented by the plaintiff is so intertwined with the state court proceedings that a federal court review of the claim would necessarily constitute a review of the state court’s decision, such that a federal court decision in the plaintiff’s favor would call the state court decision into question.” Pancake v. McCowan, 64 F. App’x 464, 466 (6th Cir. 2003).
Under Rooker-Feldman, this court cannot penetrate the closed circle between the litigants and the court in a state case. But “sometimes a state-court judgment gives rise to a new problem . . . and that . . . new problem can get federal review without impermissible examination of the initial state-court decision.” Market. v. City of Garden City, Kan., No. 16-3293, 2017 WL 6388812, at *3 (10th Cir. Dec. 14, 2017). The reality of our legally complex, multi-jurisdictional system is that the judgment of a court may be the catalyst of a complex and far-reaching array of events and consequences that go well beyond what the court itself decided. A court entering a
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money judgment in one jurisdiction may be creating the basis for collection proceedings a thousand miles away, involving assets, rules, obligations, and interests that appear nowhere in the court’s reasoning or judgment. See Condaire, Inc. v. Allied Piping, Inc., 286 F.3d 353, 356 (6th Cir. 2002) (discussing procedures for collecting judgment entered in one federal district against property in another federal district pursuant to 28 U.S.C. § 1963). A judgment of guilt in a criminal trial may give rise to collateral consequences that neither the defendant nor the court foresaw because the statutory basis for those consequences had not even been enacted at the time of the conviction. See Doe v. Bredesen, 507 F.3d 998, 1007 (6th Cir. 2007) (upholding retroactive application of Tennessee’s sexual offender registration requirements). Court A’s criminal verdict may play a role in Court B’s parental rights case or Agency C’s decision on whether to grant a license. See, e.g., Tenn. Code Ann. § 36-1-113(g)(6) (establishing basis for termination of parental rights based on incarceration under a sentence of ten or more years); Tenn. Code Ann. § 68-140-311(a)(1)(E) (providing for denial of emergency medical services licensure based on conviction of a crime of moral turpitude). In other words, a judgment may echo throughout the life of a litigant, in ways foreseeable or unforeseeable, far beyond the facial terms of the judgment itself. Rooker-Feldman protects the judgment, but not necessarily its farreaching consequences.
Several courts have considered Rooker-Feldman in the context of judgment collection mechanisms and have generally held that the doctrine poses no obstacle to federal jurisdiction, as long as the plaintiff raises “a challenge to the manner of collecting on the state-court judgment,” rather than a “claim . . . contingent upon the invalidity of the underlying debt.” Moore v. Idealease of Wilmington, 465 F. Supp. 2d 484, 490 (E.D.N.C. 2006) (emphasis added) (citing Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432, 437 (6th Cir. 2006); Senftle v.
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Landau, 390 F. Supp. 2d 463, 469 (D. Md. 2005); Wyles v. Excalibur I, LLC, No. 052798JRTJJG, 2006 WL 2583200, at *2 (D. Minn. Sept. 7, 2006)); see also Hageman v. Barton, 817 F.3d 611, 614–16 (8th Cir. 2016) (“Through his federal complaint, [plaintiff] seeks relief from neither the Missouri judgment nor the Illinois garnishment order. Rather, he alleges statutory violations seeking statutory penalties based on [defendant’s] actions in the process of obtaining the judgment and order. [Therefore,] Rooker-Feldman does not apply, and we may exercise jurisdiction over [plaintiff’s] federal claims.”); Moran v. Greene & Cooper Attorneys LLP, 43 F. Supp. 3d 907, 911–12 (S.D. Ind. 2014) (“Plaintiff does not challenge the validity of the state court judgment against him—neither its amount nor the methods used by the creditor to obtain it. . . . [W]e could find that Defendant violated the statute without ‘reviewing’ the state court judgment, and [the] Rooker-Feldman doctrine therefore presents no impediment to our exercise of jurisdiction.”); Ness v. Gurstel Chargo, P.A., 933 F. Supp. 2d 1156, 1162–63 (D. Minn. 2013) (“These allegations appear to attack Defendants’ debt-collection practices rather than the state-court judgments, so for the purposes of deciding this motion, the Court determines that Rooker-Feldman does not bar these . . . claims.”); Meyer v. Debt Recovery Sols. of Ohio, Inc., No. 1:10CV363, 2010 WL 3515663, at *4 (N.D. Ohio Sept. 2, 2010) (holding that RookerFeldman did not apply “[b]ecause the plaintiffs challenged the manner of collection rather than the underlying debt”).
The Sixth Circuit addressed the issue in Todd v. Weltman, Weinberg & Reis Co., in which a judgment debtor filed suit under the Fair Debt Collection Practices Act based on the judgment creditor’s filing of an allegedly false affidavit under Ohio’s garnishment statute. 434 F.2d at 437. The Sixth Circuit concluded that Rooker-Feldman did not bar jurisdiction, because the plaintiff “d[id] not complain of injuries caused by this state court judgment, as the plaintiffs did in Rooker
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and Feldman,” but rather raised “an independent federal claim that Plaintiff was injured by” the
defendant’s collection activities. Id. at 437. The same principle would apply to permit
jurisdiction here. Fundamental to Rooker-Feldman is the question of whether the federal courts
are being asked, either actually or practically, to exercise an appellate function. “Where federal
relief can only be predicated upon a conviction that the state court was wrong, it is difficult to
conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the
state-court judgment.” Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998) (quoting Keene Corp.
v. Cass, 908 F.2d 293, 296–97 (8th Cir. 1990)). Neither Thomas nor Hixson argues that
Tennessee state courts committed error either in entering their convictions or in assessing fines,
costs, or litigation taxes against them. Nor do Thomas and Hixson challenge the relevant courts’
or prosecutors’ rights to enforce that debt against them through the various ordinary collection
mechanisms that the law makes available to creditors. Thomas and Hixson seek only one thing:
that the state not take away their lawful ability to drive based on the fact that they cannot
currently pay the amounts they owe. Their challenge is to one inherently post-judgment coercive
tool used in the state’s collection regime—not to any judgment itself.4
To bolster his Rooker-Feldman argument, Purkey points to the various statutory bases
pursuant to which an individual facing court debt can ask a relevant court, within its discretion,
4 Purkey urges the court to follow the lead of two district courts that applied Rooker-Feldman to bar pro se plaintiffs’ claims challenging their driver’s license revocations or suspensions. King v. Creed, No. 1:14-CV-0165, 2016 WL 204492, at *2–3 (N.D.N.Y. Jan. 15, 2016); Normandeau v. City of Phoenix, 516 F. Supp. 2d 1054, 1064 (D. Ariz. 2005). Purkey cites these cases for the proposition that Rooker-Feldman bars suits challenging revocations that have a “causal relationship” to state-court judgments. (Docket No. 88 at 7 (quoting McKithen v. Brown, 481 F.3d 89, 98 (2d Cir. 2007)).) Insofar as those cases are based on such a rule, it is plainly incompatible with the Sixth Circuit’s recognition, in Todd, that suits based on a judgment creditor’s collection efforts are permissible as long as they do not challenge the original judgment. 434 F.2d at 437. The Supreme Court, moreover, has stated unambiguously that a causal connection is a necessary, but not sufficient, condition for applying Rooker-Feldman, writing that the doctrine reaches “cases [1] brought by state-court losers [2] complaining of injuries caused by state-court judgments [3] rendered before the district court proceedings commenced and [4] inviting district court review and rejection of those judgments.” Exxon, 544 U.S. at 284 (emphasis added).
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for some form of relief from his debt or some consideration of his indigency. See Tenn. Code Ann. §§ 40, 24-102, 40-25-123(b), 40-24-102, 40-24-105(h), 67-4-605(c). Because such avenues are available, Purkey argues, the plaintiffs’ claims are the equivalent of a direct challenge to the state courts’ failure to grant the relevant relief. Rooker-Feldman, however, insulates actual state court judgments, not hypothetical ones. See Exxon, 544 U.S. at 284 (noting that Rooker-Feldman applies only to judgments actually “rendered before the district court proceedings commenced”). Thomas and Hixson are not challenging any judgment made pursuant to the cited statutes, nor are they even arguing that they are entitled to have fines, costs, or litigation taxes waived. Thomas and Hixson seek relief from one specific statutory consequence of their failure to pay— the revocation of their licenses—that took effect long after the fines, costs, or litigation taxes were imposed, based on a fact—their nonpayment after one year—that was not, nor could have been, adjudicated in the original criminal proceedings.
Purkey argues, in essence, that as long as Tennessee state law permits the plaintiffs to raise the issue of their indigence to a court in some form, pursuant to some standard, then Rooker-Feldman wholly shields state and local agencies from any federal suit based on those agencies’ actions related to nonpayment. The narrow protections of Rooker-Feldman require no such result. What Thomas and Hixson have raised is clearly a challenge to the operation of a supplemental statutory mechanism for seeking to coerce or encourage the payment of their debts—not any actual feature of the judgments against them or the debts in and of themselves. The court, accordingly, will not grant summary judgment or dismissal based on the RookerFeldman doctrine.
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B. Constitutionality of Applying Tenn. Code Ann. § 40-24-105(b) to Indigent Debtors To prevail on a claim under § 1983, a plaintiff must prove two elements: (1) that he was
deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of law. Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). In both his motion to dismiss and his motion for summary judgment, Purkey argues that Thomas and Hixson cannot prevail, because they cannot establish any constitutional violation related to the section 40-24-105(b) revocation scheme. In response and in support of their own motion for summary judgment, Thomas and Hixson argue that section 40-24-105(b) is unconstitutional under a straightforward application of a number of Supreme Court cases, starting with Griffin v. Illinois, 351 U.S. 12 (1956). See also Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971); Mayer v. City of Chicago, 404 U.S. 189 (1971); James v. Strange, 407 U.S. 128 (1972); Bearden v. Georgia, 461 U.S. 660 (1983). Purkey argues that the state’s scheme is subject only to rational basis review, which it survives. See Midkiff v. Adams Cty. Reg’l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005) (“Under rational basis review, the governmental policy at issue will be afforded a strong presumption of validity and must be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate government purpose.” (citations & internal quotation marks omitted)).
1. Count I a. The Griffin Cases
Starting with Griffin, and continuing through several cases decided over the ensuing decades, the Supreme Court set forth certain core protections due to indigent persons—primarily criminal defendants—under the constitutional guarantees of due process and equal protection. In Griffin, the Supreme Court, through divided opinions, held that the State of Illinois had violated
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both the Due Process and Equal Protection Clauses of the Fourteenth Amendment by failing to furnish trial transcripts to criminal defendants who needed the transcripts to obtain appellate review of their convictions but were unable to afford the required fees. Justice Black, writing the lead opinion, explained that, although Illinois’ requirements, on their face, applied equally to all criminal appellants, their effect was “to deny adequate appellate review to the poor while granting such review to all others,” which, the full majority agreed, was impermissible under the Constitution. Griffin, 351 U.S. at 13.
There are aspects of the analysis in Griffin—though not, necessarily, its holding—that seem to pose a challenge in terms of reconciling the case with the rules that govern constitutional cases today. Now, every law student is encouraged to learn the ordinary formula for considering a challenge under the Equal Protection Clause: “If a protected class or fundamental right is involved, [the court] must apply strict scrutiny, but where no suspect class or fundamental right is implicated, this Court must apply rational basis review.” Midkiff, 409 F.3d at 770 (citing Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000)). The Griffin Court, however, did not explain its holding in terms of either “rational basis” or “strict scrutiny,” presumably because those rubrics had not yet taken the firm hold they now possess over so much constitutional litigation. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas, J., dissenting) (observing that “[o]nly in the 1960’s did the Court begin in earnest to speak of ‘strict scrutiny’ versus reviewing legislation for mere rationality, and to develop the contours of these tests”). Rather, Justice Black explained the Court’s holding as an extension of the basic principle, dating in its roots at least back to the Magna Carta, that “due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.” Griffin, 351 U.S. at 16–17.
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Justice Black stressed that Illinois’ scheme offended the Constitution, even though the Constitution itself did not require Illinois to provide any appellate courts at all. Id. at 18 (citing McKane v. Durston, 153 U.S. 684, 687–88 (1894)). Justice Frankfurter’s opinion completing the majority echoed Justice Black in the relevant respects, observing that “[l]aw addresses itself to actualities,” and “[i]t does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal,” if indigent persons do not have a mechanism to receive an adequate transcript. Id. at 22 (Frankfurter, J., concurring in judgment). Accordingly, “when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons . . . from securing such a review merely by disabling them from bringing” an effective notice of appeal. Id. at 23.
In the years following Griffin, the Supreme Court decided several cases expanding that case’s principle to secure additional rights to indigents working their way through the criminal justice system. See, e.g., Douglas v. California, 372 U.S. 353, 357–58 (1963) (holding that indigent defendants are entitled to counsel on their first direct appeal); Roberts v. LaVallee, 389 U.S. 40, 42 (1967) (holding that indigent defendants are entitled to a free transcript of the preliminary hearing for use at trial). In Williams v. Illinois, the Court extended the logic of Griffin to hold that a court could not increase an indigent defendant’s imprisonment past his maximum sentence, based solely on his inability to pay fines arising out of his conviction. 399 U.S. at 242. In so doing, the Court stressed that a statute’s lack of an exception for indigent persons was the equivalent of improperly imposing a greater punishment based solely on an individual’s inability to pay:
Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the
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risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment. Id. The Court stressed that its holding did not render the state “powerless to enforce judgments against those financially unable to pay a fine,” but rather merely required it to avail itself of the “numerous alternatives” on which it could rely to enforce the convicted person’s debts without unconstitutionally imposing a greater maximum sentence on the indigent than the non-indigent. Id. at 244. The purpose of Griffin, the Williams Court explained, was not to eliminate costs and fees, but to “to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice.” Id. at 241. In Tate v. Short, the Court considered whether the rule set out in Williams applied to a debtor who, unable to pay the fines he had accumulated for traffic offenses, had been committed by a court to service at a municipal farm where he would work “to satisfy the fines at the rate of five dollars for each day.” 401 U.S. at 397. The court ordering him to the farm had original jurisdiction over only offenses for which there was no possibility of confinement, but it had been granted the authority to order confinement based on failure to pay fines. Id. at 396 n.2. The Supreme Court concluded that, “[a]lthough the instant case involves offenses punishable by fines only, petitioner’s imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination [as in Williams] since, like Williams, petitioner was subjected to imprisonment solely because of his indigency.” Id. at 397–98. Again, the Court emphasized that the constitutional defect was not in the act of imposing a consequence on nonpayment, but in the fact that applying that consequence to a truly indigent person had the practical effect of imposing greater punishment based on the economic status of the violator. Id. at 401 (“We emphasize that
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our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.”).
In Mayer v. City of Chicago, the Court considered whether the Griffin right to an adequate appellate record applied in cases where the defendant faced only the threat of a fine, rather than imprisonment. The defendant in Mayer “urge[d]” the Court to adopt a “distinction to set this case apart from Griffin and its progeny”: namely, “that the defendants in all the transcript cases previously decided . . . were sentenced to some term of confinement,” whereas the accused in Mayer was “not subject to imprisonment, but only a fine.” 404 U.S. at 196. The Court rejected any suggestion that the rights set forth in Griffin and subsequent cases were at all contingent on a person’s facing the threat of incarceration:
This argument misconceives the principle of Griffin . . . . [I]ts principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. 404 U.S. at 196–97. The Court explained that the basis for its holdings since Griffin was that refusing to allow an exception for the indigent was, as a constitutional matter, no different from adopting an “unreasoned distinction” punishing indigents more severely than non-indigents for reasons unrelated to their guilt or culpability. Id. at 193 (quoting Rinaldi v. Yeager, 384 U.S. 305, 310 (1966)). “The size of the defendant’s pocketbook,” the Court wrote, “bears no . . . relationship to his guilt or innocence”—and therefore could not form the basis for denying the right to appeal. Id. at 196. Finally, in Bearden v. Georgia, the Court held that Georgia could not revoke an individual’s probation for failure to pay a fine or make restitution without first finding that the probationer was responsible for that failure or that alternative forms of punishment were
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inadequate. 461 U.S. at 672–73. The Court explained that “depriv[ing] the probationer of his conditional freedom simply because, through no fault of his own, he [could not] pay the fine” was “contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. The Bearden Court took the opportunity to consider the Williams line of cases in the context of developments in the law emphasizing the now-commonplace tiered system of judicial review of state actions, noting that “[t]he parties, following the framework of Williams and Tate, have argued the question primarily in terms of equal protection, and debate vigorously whether strict scrutiny or rational basis is the appropriate standard of review.” Id. at 665. The Court, however, noted that the considerations at issue occupied a place in the Court’s constitutional case law where “[d]ue process and equal protection principles converge” and required a more searching analysis:
Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a 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 . . . .” Id. at 666–67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)).
b. Johnson v. Bredesen The Sixth Circuit gave substantial consideration to the Griffin line of cases in Johnson v. Bredesen, in which the court held that Tennessee’s law requiring felons to pay child support and restitution before having their voting rights restored did not offend constitutional principles, despite lacking an indigence exception. 624 F.3d 742, 750 (6th Cir. 2010). The majority opinion in Johnson faulted Griffin and Williams for “fail[ing] to articulate a precise standard of review,” but ultimately concluded that the Griffin line of cases was inapposite because those cases “concerned fundamental interests”—namely, physical liberty and access to the courts—that
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made the laws at issue “subject to heightened scrutiny.” Id. at 749. Because the Johnson court considered the felons’ re-enfranchisement interests non-fundamental and because “a class of less wealthy individuals is not a suspect class,” Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 660 (6th Cir. 2008) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973)), the court applied only rational basis review.
Johnson v. Bredesen is the law of this circuit, and the court will apply it here. The court pauses to note, however, that the simple tiers-of-scrutiny analysis that the Sixth Circuit considered adequate in Johnson cannot simply be substituted for a consideration of the full line of Griffin cases without losing quite a bit in the translation. As the court will explain, one must be careful not to read Johnson in a way that (1) directly contradicts Bearden, (2) misstates the basis of the rights set forth in the earlier Griffin cases, or (3) loses a level of nuance that, as even the Johnson majority itself acknowledged, applies in cases where the statute at issue not only affects indigents but threatens to exacerbate their indigency. The court’s application of Johnson then, will be one that strives to read its holding in harmony with, rather than as a repudiation of, the Supreme Court cases that preceded it.
The parties in Bearden “debate[d] vigorously whether strict scrutiny or rational basis [was] the appropriate standard of review,” but the Court rejected those arguments on the ground that such “easy slogans” and “pigeonhole analysis” were insufficient to the “careful analysis” required by the overlap of the due process and equal protection interests at issue under Griffin. Bearden, 461 U.S. at 665–66. Fitting the principles underlying Griffin into the simple categories sufficient for an ordinary equal protection case, the Court wrote, was a task “too Procrustean to be rationally accomplished.” Id. at 667 n.8 (quoting North Carolina v. Pearce, 395 U.S. 711, 723 (1969)). The Sixth Circuit, in Johnson, acknowledges these statements but nevertheless applies
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its own gloss on Bearden, assuring the reader that, whatever the Supreme Court said, what it
meant was that the Court was applying heightened scrutiny because the fundamental right to
physical liberty was at issue. 624 F.3d at 749. It is difficult for this court to see how Bearden
supports such a reading. In any event, it is sufficient to say that the Sixth Circuit’s conclusion
was that the nature of the rights at issue in Bearden and Johnson justified the differing analyses, but that Bearden remained and remains good law.5
Moreover, the Johnson majority’s contention that the puzzle of the Griffin cases can be
solved by noting that those cases involved “fundamental interests”— freedom from confinement
and access to courts—seems, at first, to be difficult to square with the precedents themselves. In
Mayer v. City of Chicago, the Supreme Court, considering a scheme involving fines only,
expressly considered and rejected the argument that the rule of Griffin was premised on a threat
to the defendant’s physical liberty. 404 U.S. at 196–97. To the contrary, the Court explained that
its holdings arose from the premise that imposing a harsher punishment on a person due to his
indigence amounted to relying on an “‘unreasoned distinction’ proscribed by the Fourteenth
Amendment.” 404 U.S. at 193, 196 (quoting Rinaldi, 384 U.S. at 310); see also M.L.B. v. S.L.J.,
519 U.S. 102, 111 (1996) (“Griffin’s principle has not been confined to cases in which
imprisonment is at stake.”). On the other end of the spectrum, the possibility that the Griffin
cases are about freedom from physical restraint and access to the courts is belied by the fact that
the Supreme Court has expressly declined to apply them in some cases where those interests
5 Purkey seems to suggest that the reasoning set forth, in Griffin through Bearden, was rendered obsolete by the Supreme Court’s brief analysis of those cases in M.L.B. v. S.L.J., 519 U.S. 102 (1996). In M.L.B., the Supreme Court considered the constitutionality of a Mississippi scheme that premised a parent’s appeal of the termination of her parental rights on her payment of over $2,000 in record preparation fees. Id. at 106. In striking down Mississippi’s scheme, the Court did indeed use the language of “fundamental interest[s].” Id. at 113. The analysis in M.L.B., however, was expressly premised on the fact that the proceeding at issue, unlike those in the Griffin cases and here, was neither criminal nor quasi-criminal in nature. Id. at 112–13. The Court stressed that it “has not extended Griffin to the broad array of civil cases,” id. at 116, which Thomas and Hixson do not dispute.
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were implicated. See United States v. MacCollum, 426 U.S. 317, 328–29 (1976) (holding that Griffin does not apply in cases involving an indigent person’s right to obtain a transcript to assist him in obtaining collateral relief); Ross v. Moffitt, 417 U.S. 600, 618 (1974) (holding that Griffin does not grant a right to appointed counsel in a discretionary appeal). Whatever principle is at work in Griffin, then, it is clearly less simple than determining whether access to courts or a risk of confinement is directly implicated, even if that distinction was sufficient to resolve the issue presented by Johnson.
Ultimately, even the Johnson majority opinion concedes that more is going on in its talk of “fundamental interests” than a binary question of whether the statute at issue impinges on something that the courts have identified as a “fundamental right” under the Constitution. At one point, the Johnson court is called on to distinguish James v. Strange, 407 U.S. 128, which the court will discuss in more detail with regard to Count III below. The law at issue in that case, like this one, involved the collection of court-related debt from people who had faced criminal charges. The Court invalidated the Strange scheme under what appeared to be rational basis review, although the Johnson court construed the Strange opinion as having set a higher bar than was required for Tennessee’s re-enfranchisement statute. The Johnson court, rather, concluded that the analysis in Strange did not apply to Johnson because Strange involved a scheme that, by further impoverishing already-indigent debtors, endangered “the hopes of indigents for selfsufficiency and self-respect,” whereas Johnson involved a “mere ‘statutory benefit.’” Johnson, 624 F.3d at 749 (quoting Strange, 407 U.S. at 135; Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010).). But self-sufficiency and self-respect have never been recognized by the Sixth Circuit or the Supreme Court as fundamental rights in a constitutional sense. Cf. Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999) (recognizing the lack of cases recognizing a
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constitutional “general right to private employment”). Under Johnson then, an at least somewhat elevated version of rational basis review would seem to be required in a case where a scheme was alleged to discriminatorily endanger an indigent person’s basic subsistence and capacity for self-sufficiency.
The tiered system of scrutinies has its advantages and, for a large portion of constitutional cases, is sufficient to resolve the questions at hand. The problem is that this is one area of law where the Supreme Court has said, in no uncertain terms, that a different set of tools is called for. Ignoring those holdings in favor of a two-sizes-fit-all approach does not afford the Supreme Court’s cases the precedential weight to which they are entitled. As much as Purkey may argue that the standard, tiered framework is inescapable and unbending, the reality is that the jurisprudence of the Supreme Court says otherwise. In Bearden and elsewhere, the Supreme Court has recognized that, in select areas, “more is involved . . . than the abstract question whether [the challenged law] discriminates against a suspect class, or whether [the matter at issue] is a fundamental right.” Plyler v. Doe, 457 U.S. 202, 223 (1982). While this court has no appetite for inventing new areas for departure from the standard framework, it also sees no ground for ignoring the exceptions that the Supreme Court has already established.
c. Section 40-24-105(b)’s Lack of an Indigence Exception Those caveats aside, Purkey is correct that Johnson calls on us to consider whether section 40-24-105(b) bears on a fundamental interest and apply rational basis review if it does not. The Sixth Circuit has held that “there is no fundamental right to drive a motor vehicle” under the Constitution. Duncan v. Cone, No. 00-5705, 2000 WL 1828089, at *2 (6th Cir. Dec. 7, 2000). The use of a motor vehicle is, however, closely tied to the exercise of rights that have been found to give rise to heightened constitutional protection. It is well settled that “the
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Supreme Court has recognized a protected right to interstate travel.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (citing Saenz v. Roe, 526 U.S. 489, 500 (1999)). The Sixth Circuit, moreover, has gone a step further and “has recognized a protected right to intrastate travel, i.e., ‘a right to travel locally through public spaces and roadways.’” Id. (quoting Johnson v. City of Cincinnati, 310 F.3d 484, 494–98 (6th Cir. 2002)); see also Fowler v. Johnson, No. CV 17-11441, 2017 WL 6379676, at *8 (E.D. Mich. Dec. 14, 2017). That right, as recognized in this circuit, does not generally prohibit the state from denying “a single mode of transportation,” such as driving, to an individual. Fowler, 2017 WL 6379676, at *8 (collecting cases.) A law may “implicate[] the right to travel,” however, “when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” League of United Latin Am. Citizens, 500 F.3d at 535 (citing Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986)). The Sixth Circuit has demonstrated a willingness to consider laws governing the right to drive under that rubric, to determine whether “[s]omething more than a negligible or minimal impact on the right to travel” exists, thereby potentially triggering a heightened level of scrutiny. Id. (citing State of Kansas v. United States, 16 F.3d 436, 442 (D.C. Cir. 1994)). Attention to modes of transport would seem to be particularly important where, as here, the legal matter at issue, by definition, involves people with especially limited resources. A right to intrastate travel that assumes that a homeless person who cannot afford to pay court costs can simply hop into a cab or summon an Uber or a Lyft on a regular basis6 would not seem to be a right that recognizes the specific solicitude afforded to indigent persons in the criminal justice system under Griffin, Williams, Tate, Mayer, and Bearden. 6 Nor can we assume that an adequate system of public transportation exists and is available. Indeed, Purkey concedes that there are parts of Tennessee that public transportation fails to reach altogether. (Docket No. 40 ¶ 42.)
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Consistently with the Sixth Circuit’s prior decisions, the court will not consider the state’s license revocation system as subject to heightened scrutiny merely because it bears, in some way, on a person’s ability to use the roads. At the same time, however, the court notes that, as the degree of the burden imposed increases, a scheme that hinges on taking away one’s right to drive gets closer and closer to the rights to which the Constitution affords special protection. Moreover, as the court will discuss below, the right at issue here bears substantially on the debtor’s interest in self-sufficiency, which the Sixth Circuit recognized, in Johnson, to justify an at least somewhat more searching standard of review. Purkey’s contention that Johnson mandates the application of ordinary rational basis review here, therefore, is questionable.
Nevertheless, even if only the lowest standard of judicial review applies, this court cannot conclude, categorically, that section 40-24-105(b) passes constitutional muster. “Under rational basis review, a law is upheld so long as it is rationally related to a legitimate government purpose. There is a strong presumption of constitutionality and the regulation will be upheld so long as its goal is permissible and the means by which it is designed to achieve that goal are rational.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 694 (6th Cir. 2014) (citing Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000)). Thomas and Hixson do not dispute that collecting fees, costs, and taxes from those who can actually pay them is, generally speaking, a legitimate government purpose.7 See Sickles v. Campbell Cty., Ky., 501 F.3d 726, 731 (6th Cir. 2007) (“[T]he government’s interests—sharing the costs of incarceration and furthering offender accountability—are
7 Purkey identifies a total of seven legitimate purposes related to the state’s scheme, one of which is inapplicable to this analysis because it involves only restitution, which, both parties now agree, is not a basis for revocation of a driver’s license. Each of the six remaining interests is, in one way or another, simply a reformulation or component of the state’s interest in assessing and enforcing fines, costs, and litigation taxes. (See Docket No. 63-1 at 24–25.) Because the legitimacy of the state’s interest is conceded, there is no need to dwell on the many ways that that interest can be restated, subdivided, and characterized.
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substantial . . . .”). Moreover, if Tennessee’s revocation scheme applied only to those debtors capable of paying but unwilling to do so, one could imagine the rational relationship that might exist between the threat of license revocation and the legitimate interest of collecting court debt. That connection, though, falls apart where indigent debtors are concerned. Visiting a harsh consequence on “someone who through no fault of his own is unable to make” the payment sought “will not make [payment] suddenly forthcoming.” Bearden, 461 U.S. at 670. No person can be threatened or coerced into paying money that he does not have and cannot get.
As the Griffin cases demonstrate, before the court applies any level of scrutiny, it must take the preliminary analytic step of defining precisely what “the law” that is being challenged is. Under Griffin and its progeny, the answer is clear: this court is bound to consider Tenn. Code Ann. § 40-24-105(b) as the equivalent of a statute that imposes a harsher sanction on indigent debtors than their non-indigent peers. See Griffin, 351 U.S. at 13 (“There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. ”); Williams, 399 U.S. at 242 (“Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.”); Mayer , 404 U.S. at 193 (reaffirming that Griffin established a prohibition on laws that, in practical effect, created an “unreasoned distinction[]” between the indigent and non-indigent).
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In other words, if the scheme at issue affords no adequate exception based on indigence, Griffin and the cases applying it instruct this court to consider that scheme as the constitutional equivalent of the state’s “us[ing,] as the sole justification for” its action, “the poverty of” the defendant. Bearden, 461 U.S. at 671. The court must “address[] itself to actualities,” Griffin, 351 U.S. at 22, and treat section 40-24-105(b) as what it, as a practical matter, is: a law that guarantees that an indigent person will lose his license while giving a non-indigent person the opportunity not to. That the law is “nondiscriminatory on its face” does not negate the fact that imposing a payment obligation on the indigent “may be grossly discriminatory in its operation.”8 Williams, 399 U.S. at 242 (quoting Griffin, 351 U.S. at 17 n.11). Such a distinction poses constitutional problems, the Supreme Court has stressed, not merely because it might, in some instances, bear on a fundamental right, but because the distinction itself is “unreasoned.” Mayer, 404 U.S. at 193 (quoting Rinaldi , 384 U.S. at 310).
The Johnson court grappled with this question and concluded that the differential treatment of indigent prospective voters was permissible in relation to the state’s goal of ensuring payment of child support and restitution generally. The court wrote that “[t]he legislature may have been concerned, for instance, that a specific exemption for indigent felons would provide an incentive to conceal assets and would result in the state being unable to compel payments from some non-indigent felons.” 624 F.3d at 748. The Johnson majority reasoned that, although the lack of an indigence exception rendered the statute arguably overbroad, that overbreadth was not fatal due to the low level of scrutiny that applied. “That the state used a shotgun instead of a rifle to accomplish its legitimate end,” the court wrote, “is of no moment under rational basis review.” Id. 8 The court notes, however, that the issue of facial neutrality regarding indigence is something of a red herring here. If a statute imposes a sanction on a person for not paying a sum of money, the statute is not, in any meaningful way, neutral on the question of how much money the person has.
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A far different calculus prevails, however, when the privilege lost is the ability to operate a car on the state’s roadways. Unlike the power to vote, the ability to drive is crucial to the debtor’s ability to actually establish the economic self-sufficiency that is necessary to be able to pay the relevant debt. It does not require reams of expert testimony to understand that an individual who cannot drive is at an extraordinary disadvantage in both earning and maintaining material resources. “[D]riving an automobile” is “a virtual necessity for most Americans.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Thomas and Hixson have previewed substantial evidence to that effect, much of which Purkey has objected to on evidentiary, rather than factual, grounds. Even solely on the basis of the undisputed facts and the basic features of life of which the court can take judicial notice, however, the substantial economic disadvantages associated with being unable lawfully to drive are apparent.9
Most obviously, being unable to drive in Tennessee limits the jobs available to a person and makes holding a job difficult once the person has it. “Automobile travel . . . is a basic, pervasive, and often necessary mode of transportation to and from one’s home [and] workplace.” Delaware v. Prouse, 440 U.S. 648, 662 (1979). Some jobs require a person to drive as part of his duties, and even those jobs that do not themselves involve driving generally require the employee to be somewhere, reliably, on time.
The damage that the lack of a driver’s license does to one’s employment prospects is just the beginning. Being unable to drive is the equivalent of a recurring tax or penalty on engaging in the wholly lawful ordinary activities of life—a tax or penalty that someone who was convicted of the same offense, but was able to pay his initial court debt, would never be obligated to pay. When the State of Tennessee takes away a person’s right to drive, that person does not, suddenly
9 Again, Tennessee is not New York City or Chicago, where public transportation is so ubiquitous that many people do not own cars and some never even learn to drive.
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and conveniently, stop having to go to medical appointments, stop having to report to court dates, or stop having to venture into the world to obtain food and necessities. Maybe public transportation will work for some of those activities some of the time, and maybe it will not. Purkey has offered nothing that would permit the court to conclude that public transportation can adequately fill the void left by the loss of a license, and indeed he stipulates, at a minimum, that “[p]ublic transportation is not available in some parts of Tennessee.”(Docket No. 40 ¶ 42.) Similarly, while some individuals with revoked licenses may be able to rely on family or charitable assistance for some purposes, there is no reason to conclude that such options will be available or adequate in most cases. What, then, is a person on a revoked license to do? The lawful options are simple: he can simply forgo the life activities, no matter how important, for which he cannot obtain adequate transportation, or he can incur additional transportation expenses—making himself that much less likely ever to satisfy his court debt.
Of course, an indigent person with a revoked license has another option, besides accepting the practical limitations that the state has placed on him: he can, faced with the need to navigate the world and no feasible, affordable, and legal option for doing so, break the law and drive. The court very deliberately uses “can” here, not “may” or “should,” but it would simply be willful blindness to ignore the fact that some debtors with revoked licenses will be tempted to disregard the revocation, at least for pressing needs. By defying his license revocation, however, the indigent debtor puts himself at the risk of incurring more fines, more court costs, and more litigation taxes that will be likely to render the restoration of his rights an even more improbable proposition. See Tenn. Code Ann. §§ 40-35-111(e), 55-50-504(a) (criminalizing and imposing fines on driving on a revoked license). If the purpose of such a scheme were simply to lock indigent defendants into an endless cycle of greater and greater debt, it could be said to serve that
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purpose well. But Purkey, to his credit, does not assert that the State of Tennessee or his Department has any legitimate interest in building inescapable debt traps for indigent Tennesseans. Purkey, rather, claims that his Department’s policies are in furtherance of debt collection. Toward that end, it is hard to say the policies are rationally calculated.
Purkey may respond that rational basis review permits even arguably counterproductive policies a presumption of constitutionality. Nothing about the case law, however, suggests that the Constitution’s tolerance for legislative or administrative self-sabotage is limitless. Cf. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 653 (1974) (Powell, J., concurring in the result) (arguing that policy would fail rational basis review because it is “either counterproductive or irrationally overinclusive”). The Supreme Court has made clear that, “even in the ordinary equal protection case calling for the most deferential of standards,” a law may be struck down if its substance is “so discontinuous with the reasons offered for it” that any pretense of rationality cannot be sustained. Romer, 517 U.S. at 632. That review includes considering whether, “in practical effect, the challenged classification simply does not operate so as rationally to further the” legitimate purpose professed. U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 537 (1973). There is reason to believe that taking away a driver’s license is not merely out of proportion to the underlying purpose of ensuring payment, but affirmatively destructive of that end—so much so that whether section 40-24-105(b) can lay any claim to rationality is open to serious question.
The court finds itself returning to the Sixth Circuit’s reminder that, under rational basis review, a state is free to “use[] a shotgun instead of a rifle to accomplish its legitimate end.” 624 F.3d at 748. The Sixth Circuit invoked that colorful aphorism to demonstrate that the state is free to resort to policies that are imprecise and overbroad. But the question unavoidably arises: Is it
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actually always rational to reach for the metaphorical shotgun, no matter the task at hand? This court previously suggested that taking a person’s driver’s license away to try to make him more likely to pay a fine is more like using a shotgun to treat a broken arm. Maybe it is more like using the shotgun to shoot oneself in the foot. However one wants to think about it, the aspect of the Sixth Circuit’s metaphor that is easy to miss is that, while the state is not required to use the best tool for the job, it still has to use a tool for the job. There is substantial reason to doubt that applying section 40-24-105(b) to indigent debtors makes any sense at all as a tool for collecting court debt.
Section 40-24-105(b), moreover, presents more than a garden variety case of overbreadth. Johnson, unlike this case, involved a sanction, disenfranchisement, that was initially imposed on all convicted felons, with no option to buy one’s way into an exception. See 624 F.3d at 745 (citing Tenn. Code Ann. § 40-29-202(b)–(c)). When a disenfranchised felon completed his sentence, he had the right to apply for re-enfranchisement, a process that again applied generally to the entire eligible population. Id. Two of the requirements for re-enfranchisement, however, were payment of restitution and child support obligations. Id. The scheme at issue in Johnson, then, was one that truly was targeted at all qualifying felons with outstanding payment obligations, and it sanctioned those who failed to pay only by forestalling their relief from a preexisting sanction that they had suffered. See Johnson, 624 F.3d at 751 (“First, and most fundamentally, the re-enfranchisement law at issue does not deny or abridge any rights; it only restores them.”).
Section 40-24-105(b), on the other hand, imposes a wholly new sanction and is exclusively targeted at defendants who have failed to pay their court debt for an entire year—that is to say, a group particularly likely to consist, in substantial part, of defendants who, like
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Thomas and Hixson, have suffered from a longstanding, persistent inability to pay. And the undisputed facts suggest that that longstanding, persistent inability usually continues after revocation. Purkey admits that, from July 1, 2012, to June 1, 2016, his agency revoked over 146,000 driver’s licenses for failure to pay fines, costs and/or litigation taxes. It restored fewer than 11,000. (Docket No. 64 ¶¶ 107–08.) In other words, well over 92% of the people whose driver’s licenses were revoked turned out not, in fact, to be people who could be coerced into payment. Can it really be said, then, that section 40-24-105(b) is a collection mechanism that, through its overbreadth, sweeps in some indigent people? The numbers would suggest that, to the contrary, taking away the driver’s licenses of indigent people is the core of what the statute does.10
Admittedly, the General Assembly has taken some recent steps to allow courts, in their discretion, to afford relief to defendants facing greater court debt than they can pay. Absent some actually articulated standard explaining when—if ever—a defendant is entitled to that relief, those mechanisms are inadequate for vindicating the constitutional interests here. The Griffin line of cases does not simply guarantee indigent defendants, in the relevant situations, the opportunity to appeal generally to the broad discretion of their sentencing court to alleviate their burden. Rather, the Court set forth certain situations in which a qualifying indigent is, as a matter of law, entitled to an exception from bearing a certain negative consequence that he could and would avoid if he were able to pay.11 See, e.g., Mayer, 404 U.S. at 198 (“We conclude that
10 Purkey would presumably respond that the success of section 40-24-105(b) is shown not by the small number of people who paid their debt after revocation, but by the people who, out of fear of losing their licenses, paid before a year was up. But those people, by definition, were capable of paying, unlike the debtors at issue here. They could just as easily be coerced by a mechanism with an exception for indigent debtors like Thomas and Hixson. 11 Indeed, it appears that the complaining parties in at least some of the post-Griffin cases may have already been denied just that kind of discretionary relief. See Williams, 399 U.S. at 237 (noting that
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appellant cannot be denied a ‘record of sufficient completeness' to permit proper consideration of his claims.” (emphasis added)). The only statute that offers anything comparable to that type of definite relief is the provision regarding the 180-day hardship exception. See Tenn. Code Ann. § 40-24-105(b)(3)(A) (“An order to stay the revocation of the license shall be granted if the court finds that the person would experience hardship from the revocation of the license and that other means of transportation are not readily available to the person.”) & -105(b)(3)(B) (“The court may enter a one-time stay for a period of not longer than one hundred and eighty (180) days.”). That provision, however, is expressly time-limited and not primarily focused on addressing indigence.
Every other opportunity for relief is left entirely to the discretion of the court. See Tenn. Code Ann. § 40-24-102 (“The several courts in which a cause is finally adjudged are authorized, either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to the county or state.”); Tenn. Code Ann. § 40-24-104(a) (“If the defendant . . . is unable to pay the fine . . . the court . . . may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay . . . .”); Tenn. Code Ann. § 40-24-105(h) (“The court is vested with the authority and discretion to order the issuance of a restricted driver license for the purposes specified in subdivision (b)(3)(A).”); Tenn. Code Ann. § 40-25-123(b) (“[T]he
Williams “petitioned the sentencing judge to vacate that portion of the order requiring that he remain imprisoned upon expiration of his one year sentence because of nonpayment of the fine and court costs” and quoting a portion of the sentencing court’s decision including discussion of prudential concerns), reversing People v. Williams, 41 Ill. 2d 511, 513 (1969) (noting, in case below, that the relevant sentencing statute provided that “the court may further order that upon non-payment of such fine, the offender may be imprisoned until the fine is paid” (emphasis added)); Bearden, 461 U.S. at 663, 673–74 (discussing parole hearing afforded in Bearden case), reversing Bearden v. State, 288 S.E.2d 662, 663 (1982) (explaining that a trial court’s revocation decision was reviewable, under Georgia law, only for abuse of discretion).
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presiding judge of a court of general sessions may suspend the court costs and the litigation tax . . . , for any indigent criminal defendant, as in the presiding judge’s opinion the equities of the case require.”).12 Most of those mechanisms, moreover, are not targeted at the specific issue of driver’s license revocations, but rather deal with the general assessment of fines, costs, and litigation taxes. Accordingly, a court’s exercise of its discretion may, and may well, be guided by factors wholly apart from the debtor’s indigence or his need to drive.
Tennessee courts have made clear that, when a court is, by statute, given discretion to grant a debtor relief from a particular type of court debt, that discretion includes the authority to deny relief, despite the debtor’s indigence. See Black, 897 S.W.2d at 683 (upholding denial of waiver of costs for indigent defendant); State v. Lafever, No. M2003-00506-CCA-R3CD, 2004 WL 193060, at *7 (Tenn. Crim. App. Jan. 30, 2004) (applying Black to discretion to waive fines). For example, the state courts have upheld the denial of a waiver of fines to a person who was earlier found to be indigent, based purely on the speculative possibility that, “[b]y the time [he was] required to begin paying the fines, his financial circumstances may have altered significantly, for instance, through an inheritance.” Lafever, 2004 WL 193060, at *7; see also State v. Ryan, No. E2013-02135-CCA-R3CD, 2014 WL 3611508, at *7 (Tenn. Crim. App. July 22, 2014) (affirming assessment of court costs against defendant who was found, twice, to be indigent, as within the court’s discretion). Thomas and Hixson do not seek to deprive Tennessee courts of their discretion regarding what a defendant should owe. They simply argue that, when it comes to one particularly harsh consequence of nonpayment, they are entitled to a more definite right to protection based on their indigence. Because Tennessee’s discretionary relief statutes provide no definite right to relief from revocation based on inability to pay, they are no
12 Emphasis added throughout.
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substitute for the type of protection required by the Griffin cases. The state cannot replace a right to relief with an opportunity merely to throw oneself upon the mercy of the court.
If the General Assembly concluded that the state should revoke the driver’s license of every person convicted of a felony or misdemeanor, then the Griffin line of cases would provide no obstacle. However, because Tennessee has “deem[ed] it wise and just that” some convicted persons be permitted to retain their licenses, “it cannot by force of its exactions draw a line” that imposes a greater sanction on a convicted person based solely on his indigence. Griffin, 351 U.S. at 23 (Frankfurter, J., concurring in judgment). Griffin and the cases applying it have “made clear that,” at least in criminal and quasi-criminal settings, “differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.” LaVallee, 389 U.S at 42. Nothing about the rational basis framework or Johnson itself relieves Tennessee from the “basic command that justice be applied equally to all persons.” Williams, 399 U.S. at 241. Accordingly, Purkey’s Motion to Dismiss, which is premised on the argument that the plaintiffs’ arguments fail as a matter of law, will be denied as to Count I.
d. Evidentiary Basis for Granting Summary Judgment Simply concluding that Purkey is not entitled to dismissal of the plaintiffs’ claims as a matter of law leaves open the question of whether either party is entitled to summary judgment. Thomas and Hixson have set forth a sound theory of the constitutional protection to which they are entitled, based on longstanding Supreme Court precedents and well-recognized principles regarding the solicitude owed to indigent people in the criminal justice system. Whether that theory justifies the holding they seek, however, depends on the facts. Purkey reminds the court repeatedly—and correctly—that constitutional case law has recognized no fundamental right to
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drive a motor vehicle. Conceding as much, the plaintiffs have not framed their challenge as about the right to drive in the abstract, but about the practical effect of losing that right on other, sometimes profoundly important interests. Specifically, the plaintiffs argue that, in Tennessee, losing one’s license has substantial destructive effects on both (1) a person’s ability to obtain basic self-sufficiency and (2) the government’s ability to recoup its debts. The court, therefore, must survey the undisputed facts before it to determine if the plaintiffs have so conclusively established that premise—or Purkey so conclusively refuted it—that summary judgment would be proper.
i. Judicial Notice of Importance of Driving in Tennessee. The plaintiffs first urge the court to take judicial notice, generally, of the centrality of motor vehicle travel to life in Tennessee. As the court has already discussed, taking at least some judicial notice to that effect is proper. Rule 201 of the Federal Rules of Evidence permits a court, either by motion of a party or on its own motion, to “judicially notice a fact that is not subject to reasonable dispute because it” either “(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Judicial notice permits a court to acknowledge certain indisputable foundational facts about life in a jurisdiction, such as the region’s geography, see Tucker v. Outwater, 118 F.3d 930, 935 (2d Cir. 1997), its recurring weather conditions, see Stephan v. Transp. Ins. Co., 140 F. App’x 340, 341 (3d Cir. 2005), or widely known demographic facts about its workforce, see Caulfield v. Bd. of Educ. of City of N.Y., 486 F. Supp. 862, 885 (E.D.N.Y. 1979), aff’d, 632 F.2d 999 (2d Cir. 1980). Where appropriate, judicial notice may extend to indisputable realities of an area’s economic life—for example, that a state or region lacks a certain industry, see United States v. Ramirez, 910 F.2d 1069, 1071 (2d Cir. 1990), or that a particular consumer good
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is widely available, see United States v. Various Articles of Obscene Merch., Schedule No. 2102, 709 F.2d 132, 137 (2d Cir. 1983).
By the same principle, a court is permitted to take judicial notice of commonly known and indisputable facts about a city or region’s transportation infrastructure. See, e.g., Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1370 (11th Cir. 1998) (taking judicial notice that “Atlanta is home to Hartsfield Atlanta International Airport, one of the busiest airports in the country”). Indeed, as Thomas and Hixson point out, courts have, where appropriate, specifically taken judicial notice of the necessity of motor vehicle travel for certain work or life activities. See Southerland v. St. Croix Taxicab Ass’n, 315 F.2d 364, 367 (3d Cir. 1963) (“The District Court was entitled to take judicial notice of the fact, as do we, that the Alexander Hamilton Airport is located in a rural part of St. Croix, some miles from the hotels and towns of the island and that it is served by no regular public transportation facilities.”); United States v. Lopez, No. 05-CR-593, 2007 U.S. Dist. LEXIS 26170, at *13 n.14 (E.D. Pa. Mar. 26, 2007) (“The Court takes judicial notice that the motel in question is in King of Prussia, Pennsylvania, approximately 20 miles outside of Philadelphia, in an area that is not readily served by public transportation and is otherwise generally inaccessible without a car.”); cf. Susman v. N. Star Tr. Co., 30 N.E.3d 622, 628 (Ill. App. Ct. 2015) (“This court, which is located in Chicago, Cook County, may take judicial notice of the fact that Lake County is adjacent to Cook County and that many people commute every day from Lake County to work in Chicago.”). Of particular relevance to this case, the Supreme Court itself appears to have had little hesitation in observing that “[a]utomobile travel . . . is a basic, pervasive, and often necessary mode of transportation,” Prouse, 440 U.S. at 662, or in referring to driving as “a virtual necessity for most Americans.” Wooley, 430 U.S. at 715.
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“[C]aution must be used” in taking judicial notice under Rule 201, in part because judicial notice can have the effect of “depriv[ing] a party of the opportunity to use rebuttal evidence, cross-examination, and argument to attack” the assertion at issue. Countrywide Home[] Loans, Inc. v. McDermott, 426 B.R. 267, 273 (N.D. Ohio 2010) (quoting Am. Prairie Constr. Co. v. Hoich, 560 F.3d 780, 796 (8th Cir. 2009)). The court notes, however, that no such deprivation of the chance to refute a judicially noticed fact has taken place here. Indeed, Purkey has been given ample opportunity to dispute the importance of driving to life in Tennessee, and, while he has raised a number of evidentiary objections, he has offered little to nothing that would undermine the plaintiffs’ factual premise. For example, in their Statement of Undisputed Material Facts, Thomas and Hixson, citing third-party research, posit that, “[i]n Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation.” (Docket No. 64 ¶ 95.) Purkey, in response, objects on the basis of hearsay but does not deny the fact asserted. (Id.) Thomas and Hixson add that, “[i]n Nashville, Knoxville, and Chattanooga, more than two thirds of working-age residents lack access to public transportation.” (Id. ¶ 96.) Again, Purkey raises only a hearsay objection, with neither a denial of the plaintiffs’ factual assertion nor any proffered reason to doubt its general accuracy. (Id.) Thomas and Hixson then claim that “93.4% of Tennessee residents drive to work.” (Id. ¶ 97.) This time, Purkey raises two evidentiary objections—but again, he makes no quarrel with the facts. (Id.) This pattern continues for several pages, with Purkey objecting even to such undeniably common sense statements as “Many indigent people who owe Court Debt and whose licenses have been revoked under the Statute still need to drive in order to get to work, school, or medical appointments.” (Id. ¶ 106; see id. ¶¶ 94–106.) Any factual basis for Purkey’s resistance to the plaintiffs’ positions, however, is conspicuously absent.
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None of this is to give short shrift to Purkey’s evidentiary objections—which the court will address in more detail below—but to note that, if Purkey has any ground on which he actually disputes the importance of driving in Tennessee, he has had ample opportunity to raise it. Therefore, while the court will exercise the level of caution appropriate under Rule 201, it will do so while noting that Purkey and his counsel have certainly not been blindsided by this issue, nor have they been deprived of chances to make a case to the contrary.
With the foregoing principles in mind, the court takes judicial notice of the following. First, the court judicially notices that the public transportation available in Tennessee is widely insufficient to provide an adequate substitute for access to private motor vehicle transportation. Second, the court judicially notices that the services, businesses, homes, and workplaces throughout Tennessee are so geographically diffuse that navigating life in the state wholly on foot is impracticable for all but perhaps a few Tennesseans. Third, the court judicially notices that a number of obstacles prevent non-motorized transportation, such as bicycles, from providing an adequate alternative to driving in Tennessee, including (1) the aforementioned geographically diffuse pattern of development; (2) the need to travel on interstates and highways; (3) safety concerns associated with using non-motorized travel in areas without paths dedicated to that purpose; (4) the lack of such dedicated paths on numerous important roads within the state; and (5) the fact that many Tennesseans face physical limitations that would not prevent them from driving but that would sharply limit their use of a bicycle or other human-powered mode of transportation.
Based on its judicial notice of these aforementioned facts, the court concludes that it is beyond dispute that, at least as a general proposition, the cities, towns, and communities of Tennessee are pervasively structured around the use of motor vehicles. Anyone who doubts that
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premise is welcome to attempt to run a day’s worth of errands in a rural Tennessee county with no car and very little money. The centrality of motor vehicle travel is, moreover, not solely a rural problem. Even the relatively dense city of Nashville, where the court sits, is deeply reliant on motor vehicle transport. If any city in this jurisdiction could be expected to be reasonably navigable without driving, it would be Nashville—and the court takes judicial notice that, to the contrary, Nashville is a city where motor vehicle travel is an essential part of ordinary life, particularly for anyone seeking to maintain or build economic self-sufficiency.
There are, of course, limits to what the court can judicially notice. The court cannot, for example, take judicial notice of the more specific statistical claims offered by Thomas and Hixson, nor can the court ascribe absolute universality to the general facts of which the court has taken judicial notice. There is no reason, however, for the court to engage in the preposterous fiction that the question of whether driving is central to life in Tennessee is shrouded in mystery. This is a state of roads, not footpaths—and those roads, for the most part, are filled with private and commercial vehicles, not bicycles and public buses. The court is permitted to acknowledge as much.
ii. Stipulations. Indeed, the parties’ stipulations—though worded cautiously—support the court’s conclusion. Purkey stipulates, for example, that, “[f]or many adult residents of Tennessee, the ability to drive is an important aspect of daily life.” (Docket No. 40 ¶ 41.) He further stipulates that “[p]ublic transportation is not available in some parts of Tennessee.” (Id. ¶ 42). Although those stipulations, in a vacuum, may be frustratingly vague and euphemistic, the court’s permissible consideration of background facts about life in the state brings the agreedupon premises more sharply into focus. No testimony is required for the court to understand that driving is “an important aspect of daily life,” because it is how Tennesseans get to work, school,
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supermarkets, doctors’ offices, hospitals, religious services, job interviews, charitable organizations, polling places, and community activities, among other destinations. Nor is testimony required for the court to know that the “some parts of Tennessee” without public transportation include more than the bottom of the Cumberland River or the top of Mount Le Conte. The areas without public transportation, or with wholly inadequate public transportation, include the homes of many Tennesseans whose rights and desires to engage in the activities of life are no less than those of Tennesseans in the state’s city centers. The parties’ stipulations, accordingly, support a holding that the loss of one’s driver’s license works a substantial hardship on the former license holder’s capacity for self-sufficiency, such that a license revocation would be counterproductive to fostering an indigent debtor’s ability to pay his debts.
iii. Census Data and Brookings Institution Report. The stipulations and judicial notice available provide a great deal of support for the general conclusion that driving is central to everyday life and personal self-sufficiency in Tennessee. General conclusions, however, can only take the court so far. Thomas and Hixson have offered a number of more detailed supporting facts, to which Purkey objects primarily, if not exclusively, on evidentiary grounds. The court, therefore, must consider the degree to which it can consider those supporting facts on the motions for summary judgment.
Thomas and Hixson have offered the declaration of one of their attorneys, Edward Krugman, purporting to authenticate and summarize supporting evidence from (1) a 2011 Brookings Institution report entitled Missed Opportunity: Transit and Jobs in Metropolitan America (“Brookings Report”)13; and (2) census data regarding the percentage of Tennessee
13 Available at https://www.brookings.edu/research/missed-opportunity-transit-and-jobs-in-metropolitanamerica/.
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residents who commute to work.14 (Docket No. 43.) Purkey objects to both sources on the grounds that Krugman, as an attorney for the plaintiffs, is not an appropriate authenticating witness and that the Brookings Report and the census figures are hearsay.
Purkey is correct that, insofar as there is a reasonable dispute about the authenticity or credibility of sources, a lawyer for one of the parties would not be an appropriate witness on the matter—at least if that lawyer also planned to appear at trial. See Tenn. Sup. Ct. R. 8, RPC 3.7 (forbidding an attorney to be both advocate and witness at trial unless pursuant to a particular exception); see also Local R. 83.01(e)(4) (“The standard of professional conduct of the members of the bar of this Court shall include the current Tennessee Code of Professional Responsibility, Tenn. Sup. Ct. R. 8.”). That does not mean, however, that Krugman is forbidden from noting the existence of the census data and Brookings Report. The court is capable of taking judicial notice of the fact that “http://www.brookings.edu” and “http://www.census.gov” are the URLs of, respectively, the Brookings Institution and the U.S. Census Bureau, and the sources that Krugman has cited are available on those websites. Krugman’s citation to those sources, therefore, is no different from merely mentioning them in a brief and poses no problem under the Rules of Professional Conduct.
The permissibility of Krugman’s declaration, of course, does not resolve Purkey’s hearsay objections, and, indeed, the plaintiffs concede that at least the Brookings Report is hearsay. Purkey is mistaken, however, that a hearsay objection is enough to categorically insulate him from addressing the facts at issue. Purkey relies on the Sixth Circuit’s decision in Sperle v. Michigan Department of Corrections for the proposition that “[a] party opposing a motion for
14 Available at U.S. Census Bureau, Commuting (Journey to Work), https://www.census.gov/topics/employment/commuting/data.html. The court notes that the URL for accessing commuter data has apparently changed since these motions were originally briefed, but this URL appears, at least as of late March 2018, to contain the same or similar figures.
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summary judgment cannot use hearsay or other inadmissible evidence to create a genuine issue of material fact.” 297 F.3d 483, 495 (6th Cir. 2002) (citing Weberg v. Franks, 229 F.3d 514, 526 n.13 (6th Cir. 2000)). Sperle, however, was not decided under the current version of Rule 56. As the Sixth Circuit has more recently explained, the appropriate focus under Rule 56, as since amended, is on the admissibility of a fact at trial, not necessarily the admissibility of the fact in the specific form presented at the time of the summary judgment motion:
As amended in 2010, Federal Rule of Civil Procedure 56 provides that parties asserting a genuinely disputed fact need only “cit[e] to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). It then permits a party to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Once an objection is properly made, the proponent must “show that the material is admissible as presented or . . . explain the admissible form that is anticipated.” Mangum v. Repp, 674 F. App’x 531, 536–37 (6th Cir. 2017) (quoting Fed. R. Civ. P. 56(c), advisory committee’s note to 2010 amendment); see also Mount Vernon Fire Ins. Co. v. Liem Constr., Inc., No. 3:16-CV-00689, 2017 WL 1489082, at *3 (M.D. Tenn. April 26, 2017) (Crenshaw, J.) (acknowledging that the court, on a summary judgment motion, may consider evidence presented in hearsay form if the evidence can be reduced to admissible form at trial); Wilson v. Stein Mart, Inc., No. 3:15-CV-01271, 2016 WL 4680008, at *2 (M.D. Tenn. Sept. 7, 2016) (Nixon, S.J.) (same); Jeffrey W. Stempel et al., 11-56 Moore’s Federal Practice - Civil § 56.91 (2018) (“Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . , the material may be presented in a form that would not, in itself, be admissible at trial.”); Charles Alan Wright & Arthur R. Miller et al., 10A Fed. Prac. & Proc. Civ. § 2721 (4th ed.) (“The court and the parties have great flexibility with regard to the evidence that may be used in a Rule 56 proceeding.”); cf. Celotex, 477 U.S. at
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324 (“We do not mean that the nonmoving party must produce evidence in a form that would be
admissible at trial in order to avoid summary judgment.”).
Purkey’s objections premised on the fact that the Brookings Report is hearsay are not
objections that the facts therein “cannot be presented in a form that would be admissible in evidence,” as required by Rule 56(c)(2).15 The court notes, however, that lodging a simple
hearsay objection is consistent with the ordinary practice of most litigants in this district.
Addressing evidentiary objections on summary judgment through such a procedure is frequently
sufficient, either because the ultimate evidentiary issue at trial is obvious or because reliance on
the specific fact at issue is unnecessary for resolution of the relevant motion. The pending
summary judgment motions, however, do not yield such an easy resolution. Accordingly, the
court is inclined to hold those motions in abeyance with regard to Count I, pending either (1) a
more cooperative effort between the parties at reaching reasonable, agreed-upon stipulations
regarding the underlying facts or (2) the filing of supplemental briefs on whether the facts cited
by the plaintiffs and found in the Brookings Report, or some rough equivalent or substitute, can
be presented in a form that would be admissible at trial.
Thomas and Hixson do not, after all, ask the court to accept the entire Brookings Report,
in toto, as indisputable. Rather, they identify a few simple aspects of the authors’ conclusions—
mostly straightforward statistical claims about Tennessee communities—that are relevant to this
15 As Thomas and Hixson note, it is debatable whether Purkey’s practice of lodging evidentiary objections alone, without addressing the facts asserted, follows the letter of the court’s local rules. Under Rule 56.01(c), “[a]ny party opposing the motion for summary judgment must respond to each fact set forth by the movant by either (i) agreeing that the fact is undisputed; (ii) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (iii) demonstrating that the fact is disputed.” Local R. 56.01(c) (emphasis added). Moreover, “[e]ach disputed fact must be supported by specific citation to the record.” Id. Purkey, however, has not taken any position on whether he disputes the underlying facts, nor does he rely on specific citations to the record in his responses. In any event, because the court will order supplemental stipulations and briefing on this issue, it need not determine whether Purkey fully complied with Rule 56.01(c).
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case. (See Docket No. 64 ¶¶ 94–96.) The Brookings Report, in turn, is fairly transparent about its methodology, and many of the sources on which it relies are publicly available, such as transit authorities’ own route and schedule information. See Brookings Report at 5–6, 29–34. It is not difficult, then, to foresee how the facts cited by the plaintiffs—or comparable facts conveying similarly supportive background information about specific Tennessee communities—could be admissible at trial, either through an author of the Brookings Report, if available, or some other knowledgeable witness. Accordingly, if the parties truly are unable to agree upon the facts necessary for full consideration of the plaintiffs’ claims, the court will permit Thomas and Hixson to file supplemental affidavits and statements of undisputed fact establishing how, if at all, they would anticipate introducing specific factual support regarding the necessity of driving to Tennesseans.
Further briefing may also be helpful on the census data as currently presented, if the parties are unable to agree on what that data says. With regard to the raw data itself, Purkey’s hearsay objection is unavailing, because Rule 201 generally permits the court to take judicial notice of “public records and government documents available from reliable sources on the Internet.” U.S. ex rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). Official publications of public authorities, moreover, are self-authenticating under Rule 902(5) of the Federal Rules of Evidence. See Fair Hous. Ctr. of Sw. Mich. v. Hunt, No. 1:09-CV-593, 2011 WL 710666, at *3 (W.D. Mich. Feb. 23, 2011) (“Publications of the U.S. Bureau of Census are self-authenticating . . . .”). Although parties might dispute the analysis of census figures or even the methodology by which a census was conducted, the court knows of no reasonable basis to dispute that the U.S. Census Bureau’s published data is itself an accurate representation of the census or censuses taken.
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Thomas and Hixson, however, do not rely solely on the data in its raw form, but also on their compilation and tabulation of figures from that data to represent the percentages of residents in a number of Tennessee metropolitan areas who drive to work. (Docket No. 43 ¶¶ 6– 10.) The plaintiffs argue that their tabulations are admissible under Rule 1006 of the Federal Rules of Evidence, which permits a party to use “a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Alternatively, the plaintiffs suggest that their tabulations can be considered as a Rule 611(a) pedagogical device. See United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998). Given the voluminous nature of the census data, it seems to the court that a Rule 1006 summary would be appropriate. “[S]ummaries admitted as evidence under Rule 1006,” however, “must fairly represent and be taken from underlying documentary proof.” Gomez v. Great Lakes Steel Div., Nat. Steel Corp., 803 F.2d 250, 257 (6th Cir. 1986). The court’s consideration of this matter would therefore be aided by Purkey’s setting aside his evidentiary gamesmanship and weighing in on whether the plaintiffs’ summary is accurate. In other words, the court invites Purkey to check the plaintiffs’ math rather than looking for ways to avoid it. If, then, the parties are truly unable to reach an agreement regarding the plaintiffs’ numbers, the court will require additional briefing on the degree to which the numbers presented in paragraph 10 of Krugman’s declaration are admissible as a Rule 1006 summary or, in the alternative, a Rule 611(a) pedagogical device. While Purkey is free to lodge or reiterate any evidentiary objections he likes, he will also be required to take an affirmative position on the accuracy of the plaintiffs’ calculations, with an adequate and thorough explanation of any grounds for disputing those calculations, or risk the court’s taking the plaintiffs’ calculations as conceded. The plaintiffs, in
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turn, will be ordered to make good faith efforts to assist Purkey’s counsel in understanding the plaintiffs’ tabulation methodology.
Counsel for the parties can, and presumably will, use their best litigation judgment regarding how to go about the stipulations and briefing ordered. The court notes, however, that it fails to see why any party would wish to draw these proceedings out by being intransigent or willfully obtuse about the basic fact that driving is a central part of ordinary life for most adult Tennesseans who are capable of operating a motor vehicle, particularly those who wish to be economically self-sufficient. The court has taken judicial notice of that fact generally, and it has little doubt that additional facts are discoverable and admissible that would provide more detailed support for the general proposition. It is difficult to imagine what would be gained by holding a trial solely for the purpose of hauling in witnesses to authenticate studies and confirm simple calculations, all to form an evidentiary record in support of a premise that any person who lives in Tennessee can see is true. It would seem to the court that resolving this case expeditiously would be better furthered by agreeing upon the basic, indisputable facts and focusing on the area of the parties’ actual meaningful disagreement: the substance of the governing constitutional law. In any event, for the aforementioned reasons, the court will hold the parties’ motions for summary judgment in abeyance regarding Count I, pending the requested supplemental stipulations and briefing, which the court will outline in greater detail in the accompanying order.
2. Count III a. James v. Strange
Because Count III, like Count I, involves the Equal Protection Clause, the court will turn to it next. Count III targets the same features of Tennessee’s system as Count I, but from a
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different angle. Relying largely on the Supreme Court’s decision in James v. Strange, 407 U.S. 128, Thomas and Hixson argue that section 40-24-105(b) denies equal protection by subjecting people holding court debt to a significantly harsher collection and enforcement scheme than Tennessee allows with regard to people holding private debt. In other words, while Count I compares the difference between the law’s treatment of indigent court debtors and non-indigent court debtors, Count III turns to the difference between the law’s treatment of court debtors and its treatment of private debtors. Much of Purkey’s argument follows the same path he took with Count I. He argues that this scheme is governed by rational basis review, which the state’s laws should survive.
Strange involved a Kansas statutory scheme for recouping amounts expended by the state on counsel and legal services provided to indigent criminal defendants pursuant to the state’s obligations under Gideon v. Wainwright, 372 U.S. 335 (1963). Strange, 407 U.S. at 128. Any time a sum was expended, it was promptly recorded as a debt of the defendant. That debt “bec[ame] a lien on the real estate of defendant” and could “be executed by garnishment or in any other manner provided by the Kansas Code of Civil Procedure.” Id. at 131. The defendant debtor, however, was not “accorded any of the exemptions provided by [the Kansas Code of Civil Procedure] for other judgment debtors except the homestead exemption.” Id.
The Strange court considered Kansas’ scheme pursuant to a deferential standard, looking only to “whether [the law] is based on assumptions scientifically substantiated.” Id. at 133 (quoting Roth v. United States, 354 U.S. 476, 501 (1957) (Harlan, J., concurring in the result)). Indeed, even the Johnson majority has conceded that Strange’s “text appeared to apply rational basis review.” 624 F.3d at 749. Under that standard, the Court struck the scheme down, observing that the state may not “impose unduly harsh or discriminatory terms merely because
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the obligation is to the public treasury rather than to a private creditor.” Id. at 138. The Court
took particular issue with the fact that, by eliminating almost all exemptions, Kansas had
subjected criminal defendant debtors to a regime that struck at their core resources. The Court
explained that the protections that had been removed were ones intended to ensure that even
debtors facing an overwhelming civil judgment would not have their resources wholly wiped out
by debt collection efforts. For example:
Of the [exemptions available to a civil judgment debtor], none is more important to a debtor than the exemption of his wages from unrestricted garnishment. . . . Kansas has . . . perceived the burden to a debtor and his family when wages may be subject to wholesale garnishment. Consequently, under its code of civil procedure, the maximum which can be garnished is the lesser of 25% of a debtor’s weekly disposable earnings or the amount by which those earnings exceed 30 times the federal minimum hourly wage. No one creditor may issue more than one garnishment during any one month, and no employer may discharge an employee because his earnings have been garnished for a single indebtedness.
Id. at 135–36. The Court recognized that “deny[ing] protections such as these to the once
criminally accused is to risk denying him the means needed to keep himself and his family
afloat.” Id. at 146.
Strange, unlike Griffin, does not have a novella’s worth of later Supreme Court opinions
explaining precisely what the lower courts should construe it to mean. The Court did revisit the
issue, however, in Fuller v. Oregon, 417 U.S. 40 (1974). Oregon, like Kansas and a number of
other states, had adopted a statutory scheme pursuant to which the state sought to recover the
costs of counsel from defendants—in Oregon’s case, only convicted defendants—who had been
indigent at the time of their prosecutions and had relied on state-funded appointed counsel. Quite
unlike the Kansas scheme at issue in Strange, however, the Oregon recoupment statutes
categorically applied only to a person who “[was] or [would, in the future] be able to pay” the
amounts owed. 417 U.S. at 45 (quoting Or. Rev. Stat. § 161.665(3)). As interpreted by the
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Oregon courts, “no requirement to repay [could] be imposed if it appear[ed] at the time of sentencing that ‘there [was] no likelihood that a defendant’s indigency [would] end.” Id. (quoting State v. Fuller, 504 P.2d 1393, 1397 (1973)). The Oregon statute, therefore, was “quite clearly directed only at those convicted defendants who [were] indigent at the time of the criminal proceedings against them but who subsequently gain[ed] the ability to pay the expenses of legal representation.” Id. at 46. As the Court put it:
Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no ‘manifest hardship’ will result. The contrast with appointment-of-counsel procedures in States without recoupment requirements is thus relatively small: a lawyer is provided at the expense of the State to all defendants who are unable, even momentarily, to hire one, and the obligation to repay the State accrues only to those who later acquire the means to do so without hardship. Id. (footnote omitted). The Court, applying Strange, upheld Oregon’s statute. In so doing, the Court reiterated that what it had found objectionable about Kansas’ scheme was that the “elimination of the exemptions normally available to judgment debtors ‘embodie[d] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.’” Fuller, 417 U.S at 47 (quoting Strange, 407 U.S. at 142.) Concurring in the judgment, Justice Douglas stressed that the reason the statute survived was that it had “been stringently narrowed.” 417 U.S. at 59 (Douglas, J., concurring in the judgment).
b. Section 40-24-105(b)’s Protection of Indigent Debtors Strange does not require that all debt be recouped by the same mechanisms, or even by equally effective mechanisms. See Strange, 407 U.S. at 138 (“We recognize, of course, that the State’s claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not
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be identical.”). What Strange does provide, however, is a firm command that a state’s uniquely harsh treatment of a class of indigent debtors cannot be carried out in “such discriminatory fashion” that it “blight[s] . . . the hopes of indigents for self-sufficiency and self-respect.” Id. at 142–43. The question, then, is whether that is the case here.
In Tennessee, fines, costs, and litigation taxes can be collected through the same basic mechanisms as a civil judgment. See Tenn. Code Ann. § 40-24-105(a), (c), (f). Kansas also took its system of ordinary civil collections as its baseline, but ran afoul of the Constitution by subtracting a number of protections that would have been uniquely necessary for the very indigent or recently indigent debtors to which its statute applied. Tennessee took a different route, albeit one that, Thomas and Hixson argue, took it to much the same destination. Whereas Kansas took away protections from its ordinary scheme, Tennessee heaped on additional tools of coercion—most notably, the loss of a driver’s license. While the structure of the schemes is different, the effect is the same: one particular type of debtor is singled out for a regime uniquely capable of driving those debtors into, or further and more inextricably into, poverty.
Indeed, acknowledgment of the unique constitutional hazards of such a system can, as the court has noted, be found in the opinion of the Johnson Sixth Circuit majority. Johnson distinguished the Kansas debt scheme from Tennessee’s re-enfranchisement scheme on the ground that Johnson involved a “mere ‘statutory benefit,’” whereas Strange implicated the debtor’s ability to “support[] himself and his family.’” Johnson, 624 F.3d at 749 (quoting Harvey, 605 F.3d at 1079; Strange, 407 U.S. at 135). That distinction, the Johnson majority explained, was why Strange, despite facially being a case of rational basis review, in fact applied a somewhat more demanding consideration of the factors involved.
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Here, the statute at issue, like the one in Johnson, threatens serious financial harm to those who run afoul of it. The court does not need to repeat its lengthy discussion above to establish that taking a person’s driver’s license away is, like Kansas’ scheme of unlimited garnishment, a threat to the debtor’s basic subsistence. Ultimately, then, the formal differences between Count I and Count III give way to substantial practical overlap. Although the theories undergirding each differ, both hinge on just how severe a sanction the revocation of a license is and just how greatly it harms the debtor’s basic subsistence or ability to build economic selfsufficiency. For that reason, the court will likewise deny Purkey’s motion to dismiss with regard to Count III and hold the motions for summary judgment in abeyance pending the requested supplemental stipulations and briefing.
3. Count II In Count II, Thomas and Hixson challenge not the substance of the state’s revocation scheme, but the way it is carried out—specifically, that a person facing revocation is not afforded notice and an opportunity to contest the facts underlying the TDSHS’s revocation before that revocation goes into effect. Purkey does not dispute that the state’s revocation of a person’s driver’s license requires it to afford the minimal protections of due process. Purkey argues, instead, that the state’s procedural due process obligation is satisfied by a combination of (1) the original due process afforded at the time of the debtor’s conviction, (2) the fact that TDSHS sends notices informing debtors of their revocations, and (3) that a debtor who believes that his license was revoked in error because he had, in fact, paid his court debt can seek a review of his records from TDSHS. A driver’s license, once issued, is “not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539 (1971)
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(citing Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969); Goldberg v. Kelly, 397 U.S. 254 (1970)). What due process requires, however, varies depending on the nature of the scheme at issue. Even in a case where all involved agree that a person was entitled to due process, there may still be disagreement about “how much process is due.” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015). Determining precisely what process a person is entitled to in a particular situation requires the consideration of a number of factors:
[1] the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation[;] . . . [3] the probable value, if any, of additional or substitute procedural safeguards; and [4] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 559 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The Supreme Court’s cases in this area establish that a driver facing suspension or revocation of his license is entitled to a pre-deprivation hearing in some—but not all—situations. In Bell v. Burson, the Supreme Court concluded that an adequate pre-deprivation hearing was required under a Georgia law pursuant to which “the motor vehicle registration and driver’s license of an uninsured motorist involved in an accident” was “suspended unless he post[ed] security to cover the amount of damages claimed by aggrieved parties in reports of the accident.” 402 U.S. at 535–36. The state allowed a motorist an administrative hearing prior to the suspension, but that hearing did not consider issues of liability or fault. Id. at 536. Accordingly, an uninsured driver who was wholly innocent in an accident could nevertheless have his license suspended for failing to post bond in the amount of the claimed damages of another party involved—indeed, possibly the party who was actually at fault—without ever having a hearing in which he could deny his liability. Id. The Court held that the statute deprived a driver of due process and that, although a driver was not entitled to a full determination of liability before
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facing a requirement to post bond or face suspension, he was at least entitled to a “determination whether there [was] a reasonable possibility of judgments in the amounts claimed being rendered against” him. Id. at 540.
In Dixon v. Illinois, however, the Supreme Court made clear that a pre-suspension hearing is not required in all situations. 431 U.S. at 115. Under the scheme at issue in Dixon, Illinois had “established a comprehensive system of assigning ‘points’ for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records.” Id. at 107. Pursuant to the state’s regulations, a driver faced suspension or revocation, without a pre-action hearing, if he amassed a qualifying number of points. Id. at 108. The state did, however, provide for notice concurrent with the revocation or suspension, followed by a right to a full evidentiary hearing on the state’s decision. Id. at 109. Applying the aforementioned Eldridge factors, the Court concluded that no pre-deprivation hearing was required. The court explained that, in light of the fact that Illinois’ scheme permitted exceptions based on hardship, the private interest at issue was “not so great as to require [the Court] ‘to depart from the ordinary principle [that] something less than an evidentiary hearing is sufficient prior to adverse administrative action.’” Id. at 113 (quoting Mathews, 424 U.S. at 343). Moreover, although it was possible that a person might face an incorrect suspension due to a clerical error, the risk of an erroneous deprivation was ultimately “not great,” because “revocation decisions [were] largely automatic.” Id. Finally, the Court noted the “substantial public interest” in ensuring the administrative efficiency of a scheme dedicated to “safety on the roads and highways, and in the prompt removal of a safety hazard.” Id. at 114. The Court concluded that it was this last factor, the presence of a public safety issue, that particularly distinguished the case from Bell. Illinois’ denial of a pre-deprivation hearing was permissible, in part, because the statute at issue was
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“designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others.” Id. at 115.
Purkey urges this court to treat Dixon as wholly determinative of TDSHS’s obligations at issue in this case. That argument, however, ignores the fact that the factor that the Supreme Court appears to have considered most important in Dixon is entirely absent here. The scheme in Dixon was targeted at drivers who had amassed traffic offenses that could give rise to a reasonable inference that they were significantly more likely than the average driver to pose a risk to public safety if allowed on the road. In contrast, a person can find himself facing a section 40-24-105(b) revocation despite a spotless, or even exemplary, driving record. Despite Purkey’s repeated attempts to ground Tennessee’s revocation scheme in the state’s power to police the safety of its highways, he has demonstrated no basis for concluding that a driver who cannot pay his court debt is any more of a risk to the drivers around him than a driver who can. Section 4024-105(b) is not about safety; it is about payment. In that regard, it is more like the scheme at issue in Bell. Ultimately, though, Tennessee’s policy of revoking driver’s licenses based on court debt does not analogize perfectly to the laws at issue in either case. Whether a driver facing revocation is entitled to a pre-deprivation hearing must depend on a consideration of the particular rights, interests, and underlying evidentiary issues implicated here.
The facts and briefing currently before the court leave a certain amount of ambiguity with regard to how, exactly, TDSHS processes initial revocations for failure to pay court debt. In his Reply in support of his Motion for Summary Judgment, Purkey writes:
Plaintiffs are incorrect that the State revokes driver’s licenses “with no notice.” Although Section 105(b) does not require pre-revocation notices, the Commissioner is required to send notice at the time of revocation. See Tenn. Code Ann. § 55-50-504(h). Further, such “revocation . . . shall not take effect until ten (10) days after notice has been sent to the last known address of the driver.” Id.
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(Docket No. 88 at 18–19.) This language, as far as the court can tell, states that, while section 4025-105 does not itself require pre-revocation notice, another statute, section 55-50-504(h) does require notice, after which the revocation cannot “take effect” for ten days. Under that statute:
Notwithstanding any other law to the contrary, revocation or suspension of a license shall not take effect until ten (10) days after notice has been sent to the last known address of the driver. The notice requirement in this subsection (h) shall not apply to a driver whose license has been revoked or suspended by a court of competent jurisdiction or who has surrendered the license to the court. Id. The relevant section of Purkey’s Reply, however, does not actually cite to any portion of either party’s Undisputed Material Facts or Responses thereto in order to support the contention that TDSHS actually does wait ten days for its revocations to go into effect. The crux of this discrepancy appears to be Purkey’s distinction between when his agency changes a driver’s “status” and when the revocation of the license is “effective.” Purkey admits that “the Department revokes a person’s driver’s license on the same day that it receives notification of non-payment from the court.” (Docket No. 64 ¶ 28.) However, Purkey also claims that, “while revocation is effective as of the date that notification is [sent] to the driver by the Department, the Department does not change the status of the driver’s license for a period of 10 days in order to allow the driver to receive notification from the Department.” (Docket No. 64 ¶ 28.) This distinction, though, does not appear to reflect what Purkey now admits he is bound to do pursuant to section 55-50-504(h), which makes no mention of the “status” of the driver’s license, only when the revocation “shall . . . take effect.” In any event, the court need not dwell too long on this confusion, because Count II survives, for now, regardless. Whether TDSHS actually waits ten days for a revocation to take effect might become a key issue, if Thomas and Hixson ultimately fail to prevail on Counts I and III. If they do prevail on Counts I and III, however, the fact that they have not been afforded
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procedural due process will be a foregone conclusion, because they will have been, as a matter of law, entitled to an opportunity for a hearing that they have not been afforded. Moreover, the question of what type of hearing might be necessary will inevitably hinge on the outcome of Counts I and III, because the substantive nature of the rights and facts at issue affects the application of the Eldridge factors. The court, accordingly, will deny Purkey’s motion to dismiss with regard to Count II, and will add, to its requested briefing, that Purkey clarify TDSHS’s practices regarding whether a driver’s license is considered revoked for the ten days following the agency’s sending a notice letter. The motions for summary judgment will be held in abeyance in full. C. Class Certification
Thomas and Hixson seek certification of a class defined as “[a]ll persons whose Tennessee driver’s licenses have been or will be revoked pursuant to the Statute and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances.” (Docket No. 1 ¶ 93.) Purkey argues that Thomas and Hixson are not entitled to certification of their class for five reasons: (1) they have failed to produce appropriate evidence sufficient to meet their burden under Rule 23; (2) they cannot satisfy the numerosity requirement because they have not demonstrated what portion of people with revoked licenses are indigent; (3) they cannot satisfy the commonality requirement because the population of drivers with revoked licenses involves substantial variation in the issues and postures presented by each individual case; (4) they similarly cannot satisfy the typicality requirement because Thomas and Hixson proving their own right to relief would not necessarily establish the right to relief of others; and (5) they cannot satisfy Rule 23(b)(2) because they cannot identify a form of injunctive relief that would be applicable to the class as a whole.
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1. Reliance on Statement of Claudia Wilner Purkey objects to the plaintiffs’ reliance, in their motion for class certification, on a 28 U.S.C. § 1746 declaration of Claudia Wilner, which addresses a number of foundational facts regarding their proposed class and Tennessee’s scheme for revoking driver’s licenses for court debt. (Docket No. 6-3.) Wilner is one of the plaintiffs’ lawyers, and Purkey asks the court to strike her declaration on the ground that Wilner has inappropriately proffered herself as a fact witness in a case where she is also serving as counsel. Under Tennessee’s Rules of Professional Conduct, “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless” one of three enumerated exceptions applies. Tenn. Sup. Ct. R. 8, RPC 3.7(a); see also Local R. 83.01(e)(4) (“The standard of professional conduct of the members of the bar of this Court shall include the current Tennessee Code of Professional Responsibility, Tenn. Sup. Ct. R. 8.”). As Thomas and Hixson point out, Rule 3.7(a), at least by its text, specifically applies to activity “at trial” and does not directly address preliminary stages such as a motion for class certification. Nevertheless, Rule 3.7(a) may be implicated by these earlier proceedings if an attorney’s activities or statements are such that they would make her “likely to be a necessary witness” when the time for trial arrives. Nothing in Wilner’s statement raises such an issue here. For example, as the court has already noted, Rule 3.7(a) expressly permits an attorney to provide “testimony relat[ing] to an uncontested issue.” Tenn. Sup. Ct. R. 8, RPC 3.7(a)(1). Several of the facts attested to by Wilner fall clearly within that exception. For example, Wilner attests that only 7% of the people whose licenses were revoked from July 1, 2012 through June 2, 2016, have had their licenses restored. (Docket No. 6-3 ¶¶ 11–13.) Purkey has since stipulated to that fact. (Docket No. 40 ¶ 44.) Other
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of Wilner’s claims are merely citations to materials put out by the State of Tennessee itself. For example, she cites the Tennessee Department of Correction’s own figures regarding the number of people released by the state from jail or prison in Fiscal Year 2015–16 (13,987) and the average time served (4.57 years). (Docket No. 62 ¶ 14.) See Tenn. Dep’t of Corr., Statistical Abstract: Fiscal Year 2016 30 (Oct. 2016).16 “[P]ublic records and government documents available from reliable sources” are generally appropriate for judicial notice. U.S. ex rel. Dingle, 270 F. Supp. 2d at 972. Wilner’s citation to those statistics is, therefore, little different than simply citing them in a brief. Still other of Wilner’s statements bear on issues related to her representation of her client and fall within Rule 3.7(a)(2)’s exception for “testimony relat[ing] to the nature . . . of legal services rendered in the case.” (See, e.g., Docket No. 6-3 ¶¶ 1–2, 25.)
Wilner does draw the court’s attention to a handful of third-party sources related to the prevalence of poverty among people with criminal records. (Id. ¶ 16 (citing Rebecca Vallas & Sharon Dietrich, One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records 9 (2014); The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility (2010); Joan Petersilia, When Prisoners Return to the Community: Political, Economic and Social Consequences, Sentencing & Corrections, Nov. 2000, at 9.) If Wilner were planning to testify at trial regarding the credibility and contents of those reports, it would indeed likely pose a problem under Rule 3.7(a), as was discussed regarding the Brookings Report earlier. Unless Purkey disputes those reports’ very existence, however, Wilner’s merely informing the court that the reports have been published is not fact testimony on a contested issue. In any event, the court does not rely on those third-party reports for its certification decision.
16 Available at https://www.tn.gov/content/dam/tn/correction/documents/StatisticalAbstract2016.pdf. 70
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The few bits of Wilner’s attestation that arguably bear on contestable factual issues merely involve Wilner’s drawing simple inferences from the law and the uncontested facts presented. For example, Ms. Wilner speculates about the feasibility of a court debtor’s repayment of court debt while he is still incarcerated. (Docket No. 6-3 ¶ 13.) Insofar as these few statements amount to factual assertions, the court finds them unnecessary to resolving the issue of class certification and finds that they do not establish that Wilner is likely to be a necessary witness at trial. Purkey’s request that Wilner’s statement be stricken is, therefore, denied.
2. Numerosity Purkey argues next that Thomas and Hixson cannot establish that their proposed class is sufficiently numerous to warrant certification under Rule 23. Purkey concedes that, from July 1, 2012, to June 1, 2016, TDSHS revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes and restored only 10,750. (Docket No. 64 ¶ 107–08; see also Docket No. 40 ¶¶ 43–44 (stipulating to statistics)). He argues, however, that there is no way to know how many of those people were indigent. Thomas and Hixson, he argues, have therefore failed to demonstrate numerosity. Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. Although there is no strict numerical test, substantial numbers usually satisfy the numerosity requirement. Gilbert v. Abercrombie & Fitch Co., No. 2:15-cv-2854, 2016 WL 4159682, at * 4 (S.D. Ohio Aug. 5, 2016) (citing Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006)). “There is no magic minimum number that will breathe life into a class.” Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001) (quoting Jones v. CCH-LIS Legal Info. Servs., 1998 WL 671446, *1 (S.D.N.Y. Sept.28, 1998)). Plaintiff must show some evidence of or reasonably estimate the number of class members, and, in assessing numerosity, the court
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may make common sense assumptions without the need for precise quantification of the class. Id.
Purkey is correct that Thomas and Hixson have not put forth evidence that would allow the court to know precisely how many of the people whose driver’s licenses were revoked are indigent. However, “the exact number of class members need not be pleaded or proved” for a class to be certified, as long as the class representatives can show that joinder would be impracticable. Golden v. City of Columbus, 404 F.3d 950, 965–66 (6th Cir. 2005) (quoting McGee v. E. Ohio Gas Co., 200 F.R.D. 382, 389 (S.D. Ohio 2001)). Facts, common sense, and the basic features of the statutes at issue all dictate that there is little doubt that that is the case here. Tennessee’s own Administrative Office of the Courts has written that it is “generally agreed that approximately 75% of those being prosecuted by the district attorney will be indigent” for the purpose of providing counsel. Tenn. Admin. Office of the Courts, Tennessee’s Indigent Defense Fund: A Report to the 107th Tennessee General Assembly 19 (2011).17 Although one can debate the degree to which that number would translate to indigence for the purpose of paying court debt, it establishes a reasonable baseline for considering the pervasiveness of indigence in the Tennessee criminal justice system. Moreover, the nature of Tennessee’s scheme is that every person who cannot pay his court debt will face revocation unless he happens to receive some form of discretionary relief from a court. To deny that there are a substantial number of indigent debtors facing revocation, then, is essentially to deny that indigent debtors exist at all—or, at the very least, to assume, based on no evidence, that all or virtually all of those debtors have received relief that is, by its own terms, wholly discretionary. Such a possibility strikes the court as decidedly implausible.
17 Available at http://www.tsc.state.tn.us/sites/default/files/docs/aoc_indigent_defense_fund_report.pdf. 72
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Moreover, as Thomas and Hixson point out, their class would be sufficiently numerous, even if only a small percentage of the people whose licenses have been revoked turned out to be indigent. Indeed, if only one percent of the people whose licenses were revoked and never restored were indigent, then there would still be over 1,300 class members. Purkey’s own speculation on this point tends actually to support the position of the plaintiffs. Purkey speculates that, although Thomas and Hixson suggest that most of the people whose licenses were revoked pursuant to section 40-24-105(b) were indigent, “[i]t is just as likely, based upon the proof before this Court at this stage, that a majority of those revocations involved individuals with the means to satisfy the outstanding sums.” (Docket No. 67 at 7.) But even if a bare majority of those people are non-indigent, that still leaves a class of tens of thousands. Even in Purkey’s counterhypothetical intended to ward off certification, then, the plaintiffs’ class is sufficiently numerous. The court will not deny certification for failure to satisfy Rule 23(a)(1).
3. Commonality and Typicality Purkey’s latter two objections under Rule 23(a) raise the same issue from different angles. Thomas and Hixson are two particular defendants, facing indigency for their own specific reasons, required to pay court debt in two particular counties. Tennessee, however, has numerous judicial districts, courts, and clerks’ offices, which deal with a wide array of defendants. The practices for assessing and dealing with court debt may well vary substantially from county to county, from judge to judge, and from case to case. The questions then arise: (1) do all of the indigent people facing or living with revocations truly suffer a common injury; and (2) are the injuries of Thomas and Hixson truly typical of those injuries?
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a. Commonality Purkey is correct that Thomas and Hixson seek to assert claims for a diverse class of plaintiffs. The commonality requirement, however, does not simply call for the court to list all the traits that can be ascribed to the various class members and tally up the differences. “Commonality” refers to commonality with regard to the specific claims asserted. In order for the court to certify the class under Rule 23, the class members’ claims must depend upon a common contention of such a nature that it is capable of class-wide resolution. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 852 (6th Cir. 2013). Variation in the ancillary details of the class members’ cases is insufficient to defeat certification, as long as “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue.” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). The claims of all the plaintiffs in this case share at least two central questions: (1) whether Tennessee can revoke a driver’s license for failure to pay court debt without the opportunity to establish that the debtor is entitled to an exception based on his indigence; and (2) what minimum procedures the state must afford a debtor facing revocation. As the court has already discussed, those two questions implicate a number of legal and factual sub-issues, which will also be shared by the class. Moreover, while the individual cases of the different class members may vary substantially, those variations are immaterial to the categorical right that Thomas and Hixson have asserted. If Thomas and Hixson had cast their net more widely and sought to litigate the general fairness of Tennessee’s system of court debt, Purkey might be correct that the substantial amount of local and case-by-case variation would make class certification impossible. Thomas and Hixson, however, are not asking the court to consider the
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constitutionality of every debt assessment, collection effort, or clerk’s office policy. They complain of a specific injury: the revocation of a person’s driver’s license for nonpayment of court debt without the opportunity to demonstrate that the person is entitled to an exception from revocation based on his indigence. That injury is common throughout the proposed class, as are the questions of law and fact underlying it.
Purkey argues next that Thomas and Hixson cannot establish commonality, because the various members of the class pose different safety risks if allowed on the road. Section 40-24105(b), however, has nothing to do with safety risk. Tennessee has other provisions for the revocation of driver’s licenses for reasons related to safety. See, e.g., Tenn. Code Ann. § 55-50501(a)(1) (calling for revocation based on conviction for vehicular homicide), (a)(2) (calling for revocation based on conviction for driving under the influence). The only reason anyone loses his license pursuant to section 40-24-105(b) is, by definition, that the person failed to pay court debt. The proposed class presumably includes both excellent drivers and mediocre drivers, just like the general population. This case, though, is concerned only with the impediment to their driving related solely to unpaid court debt. If a member of the class should qualify for revocation for some other reason, the proposed relief would pose no obstacle. With regard to the narrow claims raised in this case, Thomas and Hixson have established commonality.
b. Typicality Typicality is met if the class members’ claims are fairly encompassed by the named plaintiffs’ claims. This requirement ensures that the class representatives’ interests are aligned with the interests of the represented class members so that, by pursuing his own interests, the class representative also advocates the interests of the class members. Whirlpool, 722 F.3d at 852–53. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course
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of conduct that gives rise to the claims of other class members and if his claims are based on the same legal theory. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). Commonality and typicality tend to merge because both of them serve as guideposts for determining whether, under the particular circumstances, maintenance of a class action is economical, and whether the plaintiff’s claims and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Young v. Nationwide Mut. Ins. Co., 693 F.3d 352, 542 (6th Cir. 2012).
In this instance, with commonality established, typicality readily follows. The underlying economic situations of Thomas and Hixson and the details of their convictions may be unique to them, but, with regard to the issues central to their claims, Thomas and Hixson are as typical as any member of the class. Because they have faced and received revocations for unpaid court debt under section 10-24-105 and they are indigent, they are typical.
4. Rule 23(b) Purkey’s argument regarding Rule 23(b) mirrors his arguments on commonality and typicality and, ultimately, succumbs to the same flaws. After a plaintiff shows that he satisfies all of the requirements of Rule 23(a), he must establish that “the class he seeks to represent falls within one of the subcategories of Rule 23(b).” Senter, 532 F.2d at 522. Thomas and Hixson rely on Rule 23(b)(2), which covers situations in which “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). Rule 23(b)(2) permits certification only for “those classes with homogenous interests” relative to the relief sought. McDonald v. Franklin Cty., Ohio, 306 F.R.D. 548, 558 (S.D. Ohio 2015) (quoting Coleman, 296 F.3d at 447).
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Purkey again attempts to defeat class certification by pointing to the array of differing courts responsible for the putative class members’ debts. Thomas and Hixson, however, are not asking this court to wade into every judicial district’s procedures and solve the wide array of challenges facing every debtor. Rather, they are asking the court simply to enjoin TDSHS from enforcing the statute in its current form because TDSHS’s process makes no allowance for indigence of the debtor. Rule 23(b)(2) is well suited to cases, such as this one, where class representatives allege an injury inherent to the administration of a generally applicable government policy. See Daffin v. Ford Motor Co., No. C-1-00-458, 2004 WL 5705647, at *5 (S.D. Ohio July 15, 2004) (“Although not limited to civil rights suits, 23(b)(2) was plainly designed . . . to address them . . . .”), aff’d, 458 F.3d 549. It may be that the constitutional protections that Thomas and Hixson seek to vindicate can be satisfied while continuing to allow for a substantial amount of local variation regarding how the required safeguards are actually to be provided. That hypothetical potential for variation, however, does not negate the unitary nature of the relief sought. The plaintiffs’ claims meet the requirements of Rule 23(b)(2).
5. Propriety of Certification Purkey identifies no other grounds for denying class certification here. Rule 23(a)(4) requires the court only to certify the class if “the representative parties will fairly and adequately protect the interests of the class.” That requirement considers both general commonality of interests and whether the putative representative “will vigorously prosecute the interests of the class through qualified counsel.” Gonzales v. Cassidy, 474 F.2d 67, 73 (6th Cir. 1973). The record provides ample basis for concluding that Thomas and Hixson have made such a showing. Thomas and Hixson have also satisfied Rule 23(a)(1), (2), and (3) by showing numerosity, commonality, and typicality, and they have demonstrated that their case falls within the
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boundaries of Rule 23(b)(2). Rule 23(c)(1) directs this court to determine whether to certify a class “[a]t an early practicable time after a person sues or is sued as a class representative,” and there appear to be no more substantive questions remaining regarding whether certification is appropriate here. The court, accordingly, will certify the proposed class.
One procedural issue, however, remains outstanding: appointment of class counsel. Rule 23(g) requires the court to appoint counsel to represent the class, chosen from among counsel involved in the litigation on behalf of individual members of the class. Hixson and Thomas have not identified whom, specifically, they are putting forward to serve as class counsel. Although the court notes that “the materials submitted in support of the motion for class certification may suffice to justify appointment [of class counsel] so long as the information described in paragraph (g)(1)(C) is included,” Fed. R. Civ. P. 23(g)(2) advisory committee’s note, the court will, rather than guessing at what Thomas and Hixson would propose, direct their counsel to designate which individual or individuals seek appointment as class counsel.
IV. CONCLUSION For the foregoing reasons, the Motion to Dismiss (Docket No. 23) will be denied and the Renewed Motion for Class Certification (Docket No. 36) will be granted. Purkey’s Motion for Summary Judgment (Docket No. 61), as well as the plaintiffs’ Motion for Summary Judgment (Docket No. 36), will be held in abeyance pending the completion of supplemental briefing and stipulations, as directed in the accompanying order. The court will further order plaintiffs’ counsel to designate in writing which individual or individuals seek appointment as class counsel, in accordance with Federal Rule of Civil Procedure 23(g), by close of business on April 6, 2018.
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An appropriate order will enter. ENTER this 26th day of March 2018.
______________________________ ALETA A. TRAUGER United States District Judge
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 Case: 18-5766 Document: 47-1 Filed: 09/12/2019 Page: 1

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
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Filed: September 12, 2019
Mr. Andrew Bolter Campbell Mr. Alexander Stuart Rieger Office of the Attorney General of Tennessee 500 Charlotte Avenue Nashville, TN 37243
Mr. Premal Dharia Mr. Jonas Wang Ms. Tara Mikkilineni Civil Rights Corps 910 17th Street, N.W., Suite 200 Washington, DC 20006
Mr. Edward P. Krugman Ms. Claudia Eleaza Wilner National Center for Law and Economic Justice 275 Seventh Avenue, Suite 1501 New York, NY 10001-6860
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Mr. Joshua Spickler Just City, 917 S. Cooper Street Memphis, TN 38104
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Case: 18-5766 Document: 47-1 Filed: 09/12/2019 Page: 2

Re: Case No. 18-5766, James Thomas, et al v. Bill Lee, et al Originating Case No. : 3:17-cv-00005
Dear Counsel, The Court issued the enclosed opinion today in this case. Sincerely yours,

cc: Mr. Kirk L. Davies Enclosure Mandate to issue

s/Cathryn Lovely Opinions Deputy

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(3 of 5)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0477n.06

Case No. 18-5766

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES THOMAS and DAVID HIXSON, on ) behalf of themselves and all others similarly )

FILED
Sep 12, 2019
DEBORAH S. HUNT, Clerk

situated,

)

)

ON APPEAL FROM THE UNITED

Plaintiffs-Appellees,

)

STATES DISTRICT COURT FOR

)

THE MIDDLE DISTRICT OF

v.

)

TENNESSEE

)

BILL LEE, Governor of Tennessee, in his )

official capacity,

)

)

Defendant,

)

)

JEFF LONG, Commissioner for the )

Department of Safety and Homeland Security, )

in his official capacity,

)

)

Defendant-Appellant

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BEFORE: ROGERS, DONALD, and THAPAR, Circuit Judges. BERNICE BOUIE DONALD, Circuit Judge. James Thomas and David Hixson are
Tennessee residents whose driver’s licenses were revoked pursuant to Tenn. Code Ann. § 40-24105(b)(1) (2018) (“Section 105”) for failure to timely pay litigation taxes, court costs, and fines assessed as a result of criminal convictions for each. Thomas and Hixson filed a lawsuit claiming that Section 105 violates their constitutional rights because it does not provide an exception for the indigent. On cross motions for summary judgment, the district court agreed with them on each

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of their claims and 1) declared the law unconstitutional, 2) ordered reinstatement of all licenses that had been revoked based solely on an individual’s inability to pay court debt, and 3) directed the state to cease further revocation of driver’s licenses until a lawful procedure was implemented. The state appealed.
Since that appeal was filed, the state enacted a new law that amends Section 105 by, inter alia, providing an indigency exception. 2019 Tenn. Pub. Acts Ch. 438. We asked the parties to provide further briefing on the impact of this new law. The plaintiffs vigorously contend in their supplemental briefing that the new law provides them the relief they originally sought and thus moots the underlying litigation. Where a plaintiff prevails in invalidating a statute, but then on appeal withdraws its claim and concedes mootness, the issue is no longer live or justiciable. Webster v. Reprod. Health Servs., 492 U.S. 490, 512 (1989) (“Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation.”); see also Remus Joint Venture v. McAnally, 116 F.3d 180, 185 (6th Cir. 1997) (“Although this case has contained numerous complexities, our decision that no Article III case or controversy exists rests on a simple fact: plaintiffs voluntarily have abandoned an argument that was necessary for them to prevail in this federal court action.”). Accordingly, this case is now moot.
The next question is what to do with the district court judgment. The defendants argue that, if this Court were to determine that no live issue remains, then they would still be subject to the district court’s directives. They are incorrect. “When a claim is rendered moot while awaiting review by this Court, the judgment below should be vacated with directions to the District Court to dismiss the relevant portion of the complaint [with prejudice].” Deakins v. Monaghan, 484 U.S. 193, 200 (1988). As our Court has explained:
The idea is that when a party seeks relief from the merits of an adverse ruling, but is frustrated by the vagaries of circumstance from obtaining an appellate ruling, it

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makes little sense to compel the losing party to live with the precedential and preclusive effects of the adverse ruling without having had a chance to appeal it. Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716 (6th Cir. 2011) (internal quotation marks omitted). Accordingly, because the issues raised in this appeal and the underlying case have become moot, we VACATE the judgment of the district court and REMAND with instructions to dismiss the underlying litigation as moot.

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

JAMES THOMAS, ET AL., Plaintiffs,
v. BILL HASLAM, ET AL.,
Defendants.

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Civil No. 3:17-cv-00005

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Judge Trauger

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O R D E R

Pursuant to instruction from the Sixth Circuit Court of Appeals (Docket No. 137), it is

hereby ORDERED that all claims in this case are hereby DISMISSED with prejudice as moot.

It is so ORDERED.

Enter this 30th day of September 2019.

________________________________ ALETA A. TRAUGER U.S. District Judge

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