U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:19-cv-00398-RWS

Wright et al v. Missouri Department of Social Services Family Support Division et al Assigned to: District Judge Rodney W. Sippel Cause: 42:1983 Civil Rights Act

Date Filed: 03/04/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Nathan Wright TERMINATED: 11/19/2019

represented by Phil Telfeyan EQUAL JUSTICE UNDER LAW 400 7th St., NW Suite 602 Washington, DC 20004 202-505-2058 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Rose Ramaswamy EQUAL JUSTICE UNDER LAW 400 7th St., NW Suite 602 Washington, DC 20004 202-643-0340 Email: rramaswamy@equaljusticeunderlaw.org

Stephanie Michelle Lummus THE COOK GROUP PLLC 701 Market Street Suite 1225 St. Louis, MO 63101 636-248-0604 Email: slummus@cookgrouplegal.com ATTORNEY TO BE NOTICED

Plaintiff
Camese Bedford on behalf of themselves and others similarly situated

represented by Phil Telfeyan (See above for address) LEAD ATTORNEY

Plaintiff Ashley Gildehaus
Plaintiff Lisa Mancini

ATTORNEY TO BE NOTICED
Marissa Hatton EQUAL JUSTICE UNDER LAW 400 7th St., NW Suite 602 Washington, DC 20004 202-838-6709 Email: mhatton@equaljusticeunderlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Rose Ramaswamy (See above for address)
Stephanie Michelle Lummus (See above for address) ATTORNEY TO BE NOTICED
represented by Marissa Hatton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Rose Ramaswamy (See above for address)
represented by Marissa Hatton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Rose Ramaswamy (See above for address)

V.
Defendant
Missouri Department of Social Services Family Support Division

represented by Laura M. Robb ATTORNEY GENERAL OF MISSOURI

Defendant Michael L. Parson in his official capacity as Governor of Missouri TERMINATED: 05/01/2020
Defendant Steve Corsi in his official capacity as Director of the Missouri Department of Social Services TERMINATED: 08/30/2019
Defendant

815 Olive Street Suite 200 St. Louis, MO 63101 314-340-7861 Fax: 314-340-7029 Email: laura.robb@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Woods Phillips ATTORNEY GENERAL OF MISSOURI 815 Olive Street Suite 200 St. Louis, MO 63101 314-340-3432 Fax: 314-340-7092 Email: robert.phillips@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Woods Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Woods Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick Luebbering in his official capacity as Director of the Family Support Division TERMINATED: 08/30/2019

represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Woods Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joel Walter in his official capacity as Director of the Department of Revenue TERMINATED: 08/30/2019

represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Woods Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Director Jackie Bemboom in her official capacity as Director of the Motor Vehicle and Driver Licensing Division TERMINATED: 08/30/2019

represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Woods Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jennifer Tidball

represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Kenneth Zellers

represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Reginald McElhannon
Defendant Joseph Plaggenberg

represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura M. Robb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/04/2019
03/04/2019 03/04/2019 03/08/2019 03/08/2019 04/04/2019

# Docket Text

COMPLAINT against defendant All Defendants with receipt

1

number 0865-7070147, in the amount of $400 Jury Demand,, filed

by Nathan Wright, Camese Bedford. (Attachments: # 1 Civil Cover

Sheet, # 2 Original Filing Form, # 3 Exhibit Ex. 1, Wright

Declaration, # 4 Exhibit Ex. 2, Wright Driver Record, # 5 Exhibit

Ex. 3, Bedford Declaration, # 6 Exhibit Ex. 4, Bedford Driver

Record, # 7 Exhibit Ex. 5, Bedford Payment Information,

# 8 Exhibit Ex. 6, Lummus Declaration, # 9 FSD Summons,

# 10 Parson Summons, # 11 Corsi Summons, # 12 Luebbering

Summons, # 13 Walter Summons, # 14 Bemboom

Summons)(Ramaswamy, Rebecca) (Entered: 03/04/2019)

2 NOTICE OF PROCESS SERVER by Plaintiffs Camese Bedford, Nathan Wright (Ramaswamy, Rebecca) (Entered: 03/04/2019)

Case Opening Notification: 6 Summons(es) issued. The summons were emailed to attorney Rebecca Rose Ramaswamy. Judge Assigned: U.S. District Judge Ronnie L. White. (BAK) (Entered: 03/04/2019)

3 ENTRY of Appearance by Phil Telfeyan for Plaintiffs Camese Bedford, Nathan Wright. (Telfeyan, Phil) (Entered: 03/08/2019)

4 ENTRY of Appearance by Stephanie Michelle Lummus for Plaintiffs Camese Bedford, Nathan Wright. (Lummus, Stephanie) (Entered: 03/08/2019)

5 ENTRY of Appearance by Laura M. Robb for Defendants Jackie Bemboom, Steve Corsi, Patrick Luebbering, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joel Walter. (Robb, Laura) (Entered: 04/04/2019)

04/05/2019 04/09/2019 04/09/2019 04/18/2019 04/22/2019
04/22/2019 05/10/2019 05/17/2019
05/17/2019

6 STIPULATION Joint Stipulation Regarding Amended Complaint and Responsive Deadlines by Defendants Jackie Bemboom, Steve Corsi, Patrick Luebbering, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joel Walter. (Robb, Laura) (Entered: 04/05/2019)
7 SUMMONS Returned Executed filed by Nathan Wright, Camese Bedford. All Defendants. (Ramaswamy, Rebecca) (Entered: 04/09/2019)
8 ENTRY of Appearance by Robert Woods Phillips for Defendants Jackie Bemboom, Steve Corsi, Patrick Luebbering, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joel Walter. (Phillips, Robert) (Entered: 04/09/2019)
9 Joint MOTION for Leave to File in Excess of Page Limitation and Extension of Briefing Deadlines by Plaintiffs Camese Bedford, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 04/18/2019)
10 ORDER: IT IS HEREBY ORDERED that the Joint Motion to File in Excess of Page Limit and for Extension of Briefing Deadlines (ECF No. 9 ) is DENIED without prejudice. The Court will issue an Order Setting Rule 16 Conference by separate order. Signed by District Judge Ronnie L. White on April 22, 2019. (BRP) (Entered: 04/22/2019)
11 RULE 16 ORDER: This case is assigned to Track: 2 (Standard). Joint Scheduling Plan due by 5/10/2019. Rule 16 Conference set for 5/17/2019 11:00 AM in Courtroom 10S before District Judge Ronnie L. White. Signed by District Judge Ronnie L. White on April 22, 2019. (BRP) (Entered: 04/22/2019)
12 JOINT SCHEDULING PLAN by Plaintiffs Camese Bedford, Nathan Wright. . (Ramaswamy, Rebecca) (Entered: 05/10/2019)
13 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Ronnie L. White: Rule 16 Conference held on 5/17/2019. Conference held in person. CMO to issue. (Court Reporter:Susan Moran, Susan_Moran@moed.uscourts.gov, 314-244-7983) (proceedings started: 10:58 AM) (proceedings ended: 11:24 AM)(Deputy Clerk: A. Cordray)(Appearance for Plaintiff: Phil Telfeyan, Stephanie Lummus)(Appearance for Defendant: Laura Robb, Robert Phillips) (AFC) (Entered: 05/17/2019)
14 CASE MANAGEMENT ORDER This case is assigned to Track: Two Motion to Join Parties due by 9/13/2019. Discovery

05/21/2019
06/03/2019 07/09/2019 07/09/2019 07/22/2019 07/23/2019

Completion due by 12/2/2019. Non-Dispositive Motions due by 12/13/2019. ADR Future Reference 7/19/2019. Dispositive Motions due by 12/16/2019. Jury Trial set for 8/17/2020 09:00 AM in Courtroom 10S before District Judge Ronnie L. White. Pretrial Compliance due by 7/28/2020. Motion in Limine due by 8/7/2020. [SEE ORDER FOR COMPLETE DETAILS]. Signed by District Judge Ronnie L. White on 05/17/2019. (KCB) (Entered: 05/17/2019)
NOTICE: IF YOU HAVE ALREADY UPGRADED YOUR PACER ACCOUNT YOU CAN DISREGARD THIS NOTICE. IF YOU DO NOT UPGRADE YOU WILL NOT BE ABLE TO FILE IN THE SYSTEM AFTER MAY 31, 2019. PLEASE UPGRADE IMMEDIATELY. If you are using a shared account to file cases, you will need to create an individual account; instructions can be found at:https://www.moed.uscourts.gov/sites/moed/files/Registerfor-New-PACER-account.pdf. If you already have an individual account, it will need to be upgraded; instructions can be found https://www.moed.uscourts.gov/sites/moed/files/UpgradeCurrent-PACER-Account.pdf. If you need further assistance contact the MOED CM/ECF Help Desk at 314-244-7650 or moedml_cmecf_help@moed.uscourts.gov. (CSAW) (Entered: 05/21/2019)
15 MEMORANDUM Certificate of Service by Defendants Jackie Bemboom, Steve Corsi, Patrick Luebbering, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joel Walter. (Phillips, Robert) (Entered: 06/03/2019)
16 ORDER REFERRING CASE to Alternative Dispute Resolution. This case is referred to: Mediation Designation of Lead Counsel: Phil Telfeyan ADR Completion Deadline due by 9/3/2019. ADR Compliance Report Deadline due by 9/23/2019. Designation of Neutral/Conference Report due by 8/13/2019.[SEE ORDER FOR COMPLETE DETAILS]. Signed by District Judge Ronnie L. White on 07/09/2019. (KCB) (Entered: 07/09/2019)
17 NOTICE of Change of Address filed by Stephanie Michelle Lummus. (Lummus, Stephanie) Address Change in CM/ECF on 7/10/2019 (CMC). (Entered: 07/09/2019)
18 MOTION for Pro Bono Neutral by Plaintiffs Camese Bedford, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 07/22/2019)
19 ORDER: IT IS HEREBY ORDERED that Plaintiffs' Unopposed Motion for Appointment of Pro Bono Neutral (ECF No. 18 ) is GRANTED. IT IS FURTHER ORDERED that Professor Karen

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08/30/2019

Tokarz, Washington University School of Law, One Brookings Drive, Campus Box 1120, St. Louis, MO 63130, is appointed as pro bono neutral, and Plaintiffs share of the neutral's fees is hereby waived. The pro bono neutral shall file a Request for Reimbursement of Services form (see Pro Bono Neutral's Request for Reimbursement of Services, www.moed.uscourts.gov, form MOED-0024) upon the completion of ADR. IT IS FINALLY ORDERED that the Clerk of the Court shall email a copy of this Order and Plaintiffs' motion (ECF No. 18 ) to Professor Karen Tokarz at tokarz@wustl.edu. Nothing in this Order alters the Case Management Order previously entered in this case. All deadlines set forth in the Case Management Order shall remain in full force and effect and will be modified only upon a showing of exceptional circumstances. Signed by District Judge Ronnie L. White on 07/23/2019. (TMT) (Entered: 07/23/2019)
20 MOTION for Extension of Time to Complete Mediation by Plaintiffs Camese Bedford, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 08/13/2019)
21 Docket Text ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion for Extension of Deadline for Mediation [ECF No. 20] is GRANTED. IT IS FURTHER ORDERED that the ADR conference(s) shall be concluded by October 15, 2019, and lead counsel shall notify the clerk of the date, time, and location of the conference by September 24, 2019. Signed by District Judge Ronnie L. White on 8/14/19. (ALM) (Entered: 08/14/2019)
22 AMENDED COMPLAINT against defendant Missouri Department of Social Services Family Support Division, Michael L. Parson, Jennifer Tidball, Kenneth Zellers, Reginald McElhannon, Joseph Plaggenberg,Terminating Patrick Luebbering (in his official capacity as Director of the Family Support Division), Joel Walter (in his official capacity as Director of the Department of Revenue), Jackie Bemboom (in her official capacity as Director of the Motor Vehicle and Driver Licensing Division) and Steve Corsi (in his official capacity as Director of the Missouri Department of Social Services) , filed by Camese Bedford, Nathan Wright, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Exhibit Wright Decl, # 2 Exhibit Wright Driver Record, # 3 Exhibit Bedford Decl, # 4 Exhibit Bedford Driver Record, # 5 Exhibit Gildehaus Decl, # 6 Exhibit Gildehaus Driver Record, # 7 Exhibit Mancini Decl, # 8 Exhibit Mancini Driver Record, # 9 Exhibit Lummus Decl, # 10 Exhibit Suspension Flowchart)(Ramaswamy, Rebecca) (Entered: 08/30/2019)

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09/05/2019 09/09/2019 09/16/2019 09/18/2019

23 MOTION to Amend/Correct 14 Case Management Order,, and Request for Status Conference by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Attachments: # 1 Exhibit 1 - Plaintiffs' Initial Disclosures, # 2 Exhibit 2 - Plaintiffs' First Set of Interrogatories, # 3 Exhibit 3 - Plaintiffs' Second Set of Interrogatories, # 4 Exhibit 4 - Plaintiffs' Third Set of Interrogatories)(Robb, Laura) (Entered: 09/03/2019)
24 RESPONSE in Opposition re 23 MOTION to Amend/Correct 14 Case Management Order,, and Request for Status Conference filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Attachments: # 1 Exhibit June 13-14 Email Exchange, # 2 Exhibit Pls' Deficiency Letter, # 3 Exhibit Aug 16-19 Email Exchange, # 4 Exhibit Aug 21-23 Email Exchange, # 5 Exhibit Aug 27 Email Exchange, # 6 Exhibit Defs' Letter Aug 28, # 7 Exhibit Pls' Letter Aug 29, # 8 Exhibit Aug 27 Email Re Depo Notices, # 9 Exhibit Sep 3 Email, # 10 Exhibit Sep 4 Email Re 30(b)(6) Depo Notices)(Ramaswamy, Rebecca) (Entered: 09/04/2019)
25 REPLY to Response to Motion re 23 MOTION to Amend/Correct 14 Case Management Order,, and Request for Status Conference filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 09/05/2019)
26 ORDER : IT IS HEREBY ORDERED that Defendants' Motion to Amend Case Management Order and Request for Status Conference (ECF No. 23 ) is GRANTED as to the motion to amend the CMO and DENIED as to the motion for a status conference. IT IS FURTHER ORDERED that the parties shall submit an Amended Joint Proposed Scheduling Plan no later than September 16, 2019. ( Joint Scheduling Plan due by 9/16/2019.) Signed by District Judge Ronnie L. White on 09/09/2019. (KCB) (Entered: 09/09/2019)
27 JOINT SCHEDULING PLAN by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. . (Ramaswamy, Rebecca) (Entered: 09/16/2019)
28 MOTION to Exclude Plaintiffs' Presence at Mediation Conference by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 09/18/2019)

09/19/2019 09/19/2019
09/20/2019 09/23/2019 10/03/2019 10/07/2019
10/07/2019

29 Designation of Neutral by parties and ADR Conference Report by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright Neutral: Tokarz, Karen L. Date of Conference: September 30, 2019 time: 9:00am Location: US Arbitration & Mediation, 500 N. Broadway, #1800 St. Louis, MO, 63102(Ramaswamy, Rebecca) (Entered: 09/19/2019)
30 AMENDED CASE MANAGEMENT ORDER: This case is assigned to Track: Two. [SEE ORDER FOR FURTHER DETAILS] (Motion to Join Parties due by 9/13/2019. Discovery Completion due by 3/2/2020. Non-Dispositive Motions due by 3/13/2020. Dispositive Motions due by 3/16/2020. Jury Trial set for 8/17/2020 09:00 AM in Courtroom 10S before District Judge Ronnie L. White. Pretrial Compliance due by 7/28/2020. Motion in Limine due by 8/7/2020.) Signed by District Judge Ronnie L. White on 09/19/2019. (TMT) (Entered: 09/19/2019)
31 NOTICE of Appointment of Neutral. Neutral name: Tokarz, Karen L. Neutral selected by Court. (cc: Neutral) (BRP) (Entered: 09/20/2019)
32 Docket Text ORDER: IT IS HEREBY ORDERED that Plaintiffs' Unopposed Motion Requesting to be Excused from Attending Mediation [ECF No. 28] is GRANTED. Signed by District Judge Ronnie L. White on 9/23/19. (ALM) (Entered: 09/23/2019)
33 Joint MOTION to Amend/Correct 30 Case Management Order Amended, by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 10/03/2019)
34 Docket Text ORDER: IT IS HEREBY ORDERED that the parties' Joint Motion to Amend Briefing Schedule and ADR Deadline in Case Management Order [ECF No. 33] is GRANTED. IT IS FURTHER ORDERED that all deadlines for the briefing schedule on plaintiff's motion for class certification in paragraph 5 of the Amended CMO shall be extended by seven (7) days. IT IS FURTHER ORDERED that the parties shall complete ADR by October 18, 2019. IT IS FINALLY ORDERED that the hearing on class certification set for November 12, 2019 is CANCELED and will be rescheduled at a later date. Signed by District Judge Ronnie L. White on 10/7/19. (ALM) (Entered: 10/07/2019)
35 ADR COMPLIANCE REPORT - Neutral: Tokarz, Karen L. Date of Conference: 09/30/2019. The parties participated in good faith.

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10/25/2019 10/25/2019 10/28/2019 10/28/2019

The parties did not achieve a settlement. (TMT) (Entered: 10/07/2019)
36 Docket Text ORDER: IT IS HEREBY ORDERED that a hearing on the motion for class certification is set for Wednesday, December 11, 2019 at 2:00 p.m. in Courtroom 10 South. Signed by District Judge Ronnie L. White on 10/16/19. (ALM) (Entered: 10/16/2019)
37 Joint MOTION to Amend/Correct 34 Docket Text Order,, 30 Case Management Order - Amended, by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 10/21/2019)
38 Docket Text ORDER: IT IS HEREBY ORDERED that no later than October 25, 2019, the parties shall submit an amended joint proposed scheduling plan setting forth firm dates with which the parties can comply. IT IS FURTHER ORDERED that the Joint Motion to Amend Briefing Schedule [ECF No. 37] is DENIED as MOOT. Signed by District Judge Ronnie L. White on 10/22/19. (ALM) (Entered: 10/22/2019)
39 Joint MOTION to Amend/Correct 30 Case Management Order Amended, by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 10/25/2019)
40 Joint MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 10/25/2019)
41 Docket Text ORDER: IT IS HEREBY ORDERED that the parties' Joint Motion to File in Excess of Page Limitation [ECF No. 40] is GRANTED. Signed by District Judge Ronnie L. White on 10/28/19. (ALM) (Entered: 10/28/2019)
42 AMENDED CASE MANAGEMENT ORDER: Discovery Completion due by 3/2/2020., Non-Dispositive Motions due by 3/13/2020., Dispositive Motions due by 11/8/2019., Jury Trial set for 8/17/2020 09:00 AM in Courtroom 10S - St. Louis before District Judge Ronnie L. White., Pretrial Compliance due by 7/28/2020., Motion in Limine due by 8/7/2020. Signed by District Judge Ronnie L. White on October 28, 2019. (BRP) (Entered: 10/28/2019)

10/31/2019

43 ADR COMPLIANCE REPORT Neutral: Tokarz, Karen L.. Date of Conference: 10/18/2019. The parties participated in good faith. The parties did not achieve a settlement.(KCB) (Entered: 10/31/2019)

10/31/2019

44 MOTION for Pro Bono Neutral's Reimbursement of Services in the amount of $1,000.00 for Karen Tokarz. (TMT) (Entered: 10/31/2019)

11/01/2019

45 MOTION for Preliminary Injunction by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Attachments: # 1 Exhibit Suspension Memo, # 2 Exhibit Defs' Resp to 3rd Interrogatories, # 3 Exhibit FSD Depo, # 4 Exhibit DOR Depo, # 5 Exhibit Form 14 Inst, # 6 Exhibit Training Manual, # 7 Exhibit Notice of Intent, # 8 Exhibit Temp Payment Agmt Inst, # 9 Exhibit Defs' Resp to 2nd Interrogatories, # 10 Exhibit DOR Suspension Notice)(Ramaswamy, Rebecca) (Entered: 11/01/2019)

11/01/2019

46 MOTION to Certify Class by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Attachments: # 1 Exhibit Defs' Resp to 1st Interrogatories, # 2 Exhibit Telfeyan Decl)(Ramaswamy, Rebecca) (Entered: 11/01/2019)

11/04/2019

47 ORDER Re: PRO BONO NEUTRAL'S REQUEST FOR REIMBURSEMENT OF SERVICES [SEE ORDER FOR COMPLETE DETAILS]. Signed by District Judge Ronnie L. White on 11/04/2019. (KCB) (Main Document 47 replaced on 11/5/2019) (TMT). (Entered: 11/04/2019)

11/07/2019

48 Letter to Karen Tokarz from Financial Administrator re:reimbursement (KCB) (Entered: 11/07/2019)

11/08/2019 49

MOTION to Dismiss Case by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 11/08/2019)

11/08/2019 50

MEMORANDUM in Support of Motion re 49 MOTION to Dismiss Case filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 11/08/2019)

11/14/2019

51 Consent MOTION to Dismiss Party Nathan Wright by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 11/14/2019)

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52 MEMORANDUM in Opposition re 45 MOTION for Preliminary Injunction filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Attachments: # 1 Exhibit A- DEF's Joint Responses & Objections to PL's 1st IROGS, # 2 Exhibit B-Deposition Ashley Gildehaus, # 3 Exhibit C Deposition Lisa Mancini, # 4 Exhibit D Affidavit Steven Kissinger)(Robb, Laura) (Entered: 11/15/2019)
53 MEMORANDUM in Opposition re 46 MOTION to Certify Class filed by Defendants Steve Corsi, Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Attachments: # 1 Exhibit A-Gildehaus Driving Record, # 2 Exhibit B- Depostion Mancini, # 3 Exhibit C- Deposition Gilehaus)(Robb, Laura) (Entered: 11/15/2019)
54 MEMORANDUM in Opposition re 49 MOTION to Dismiss Case filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini, Nathan Wright. (Ramaswamy, Rebecca) (Entered: 11/15/2019)
55 Docket Text ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Voluntarily Dismiss Plaintiff Nathan Wright [ECF No. 51] is GRANTED. Future pleadings shall omit Mr. Wright as a party to this action. Signed by District Judge Ronnie L. White on 11/19/19. (ALM) (Entered: 11/19/2019)
56 REPLY to Response to Motion re 49 MOTION to Dismiss Case filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 11/22/2019)
57 REPLY to Response to Motion re 45 MOTION for Preliminary Injunction filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Exhibit Gildehaus Deposition, # 2 Exhibit Mancini Deposition, # 3 Exhibit Bedford Deposition, # 4 Exhibit DOR Deposition)(Ramaswamy, Rebecca) (Entered: 11/27/2019)
58 REPLY to Response to Motion re 46 MOTION to Certify Class filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Exhibit Bedford Deposition, # 2 Exhibit Gildehaus Deposition, # 3 Exhibit Mancini Deposition, # 4 Exhibit

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Eger Affidavit, # 5 Exhibit Hahn Affidavit, # 6 Exhibit Pearce Affidavit, # 7 Exhibit Peterson Affidavit, # 8 Exhibit Puentes Affidavit)(Ramaswamy, Rebecca) (Entered: 11/27/2019)
59 NOTICE of Supplemental Authority re 45 MOTION for Preliminary Injunction by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers . (Attachments: # 1 Exhibit A-Fowler Decision, # 2 Exhibit B-Order)(Robb, Laura) (Entered: 12/09/2019)
60 NOTICE Erratum: by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini re 54 Memorandum in Opposition to Motion (Ramaswamy, Rebecca) (Entered: 12/10/2019)
61 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Ronnie L. White: Motion Hearing held on 12/11/2019 re 45 MOTION for Preliminary Injunction filed by Lisa Mancini, Camese Bedford, Nathan Wright, Ashley Gildehaus, 46 MOTION to Certify Class filed by Lisa Mancini, Camese Bedford, Nathan Wright, Ashley Gildehaus. The Court hears argument. The matter taken under submission. (Court Reporter:Susan Moran, Susan_Moran@moed.uscourts.gov, 314244-7983) (proceedings started: 1:57PM) (proceedings ended: 2:53PM)(Deputy Clerk: K. Battle)(Appearance for Plaintiff: Rebecca Ramaswamy & Phil Telfeyan)(Appearance for Defendant: Laura Rob) (KCB) (Entered: 12/11/2019)
62 MOTION for Leave to Appear Pro Hac Vice Marissa K. Hatton. The Certificate of Good Standing was attached.(Filing fee $100 receipt number AMOEDC-7642375) by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Certificate of Good Standing for Marissa K. Hatton)(Hatton, Marissa) (Entered: 12/16/2019)
63 Docket Text ORDER: IT IS HEREBY ORDERED that the Verified Motion for Admission Pro Hac Vice by Marissa K. Hatton on behalf of Plaintiffs [ECF No. 62] is GRANTED. Signed by District Judge Ronnie L. White on 12/17/19. (ALM) (Entered: 12/17/2019)
64 ADMINISTRATIVE ORDER - IT IS HEREBY ORDERED that the following cases shall be transferred to District Judge Sarah E. Pitlyk. All deadlines previously set remain in effect unless otherwise ordered by the Court. Case reassigned to District Judge Sarah E. Pitlyk for all further proceedings. District Judge Ronnie L. White no longer assigned to case.. Signed by District Judge Rodney W. Sippel on 1/30/2020. (MRC) (Entered: 01/30/2020)

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65 MOTION for Extension of Time to File Response/Reply by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 01/31/2020)
66 ORDER Due to conflict of interest, this Court hereby recuses itself from this case. This case will be reassigned to another Judge. This cause has been reassigned to the Honorable Ronnie L. White, United States District Judge. Signed by District Judge Sarah E. Pitlyk on 2/5/2020. (KXS) (Entered: 02/05/2020)
67 ORDER: IT IS HEREBY ORDERED that the undersigned United States District Judge is disqualified from handling any matters in this case, and the Clerk of Court shall randomly reassign the case to another judge. Signed by District Judge Ronnie L. White on 2/5/2020. (TMT) (Entered: 02/05/2020)
68 REASSIGNMENT ORDER (GJL). District Judge Ronnie L. White no longer assigned to case. Case reassigned to District Judge Stephen N. Limbaugh, Jr for all further proceedings. (KXS) (Entered: 02/05/2020)
69 REASSIGNMENT ORDER (GJL). To avoid any potential appearance of impropriety, Judge Stephen N. Limbaugh, Jr. disqualifies himself from this case. Therefore, the case is being randomly reassigned to a different Judge. Accordingly, IT IS HEREBY ORDERED that the above styled cause is randomly reassigned to the Honorable Rodney W. Sippel. (KXS) (Entered: 02/05/2020)
70 NOTICE of Change of Address filed by Stephanie Michelle Lummus. (Lummus, Stephanie) Address updated in CM/ECF on 2/6/2020 (CMC). (Entered: 02/06/2020)
71 (WITHDRAWN) MOTION to Quash Deposition by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 02/11/2020)
72 MEMORANDUM in Support of Motion re 71 MOTION to Quash Deposition filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 02/11/2020)

02/12/2020 02/14/2020 02/20/2020
02/27/2020 03/03/2020
03/12/2020

73 RESPONSE in Opposition re 65 MOTION for Extension of Time to File Response/Reply filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Hatton, Marissa) (Entered: 02/12/2020)
74 MOTION to Withdraw 71 MOTION to Quash Deposition of Denise Gabel by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 02/14/2020)
75 Docket Text ORDER: Re: 74 MOTION to Withdraw 71 MOTION to Quash Deposition of Denise Gabel by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) filed by Reginald McElhannon, Joseph Plaggenberg, Jennifer Tidball, Michael L. Parson, Missouri Department of Social Services Family Support Division, Kenneth Zellers ; ORDERED GRANTED. Signed by District Judge Rodney W. Sippel on 2/20/20. (ARL) (Entered: 02/20/2020)
76 MOTION for Extension Defendants' Request for Status Conference, Motion to Delay Deadline to File Motions for Summary Judgment and Memorandum in Support of: to File Motions for Summary Judgment and Memorandum in Support by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 02/27/2020)
77 ORDER : IT IS HEREBY ORDERED that Defendants' motion for a status conference in this matter and to delay the deadline to file dispositive motions 76 is GRANTED. IT IS FURTHER ORDERED that a status conference is set in this matter on March 12, 2020 at 2:00 p.m. in Courtroom 16 South. IT IS FURTHER ORDERED that the dispositive motion deadline in this matter is suspended and will be addressed at the status conference. ( Status Conference set for 3/12/2020 02:00 PM in Courtroom 16S - St. Louis before District Judge Rodney W. Sippel.)Signed by District Judge Rodney W. Sippel on 3/3/20. (ARL) (Entered: 03/03/2020)
78 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Rodney W. Sippel: Status Conference held on 3/12/2020. Discussions held on the record. Order to issue. (Court Reporter:Shannon White, Shannon_White@moed.uscourts.gov, 314-244-7966) (proceedings started: 2:25) (proceedings ended: 2:41)(Deputy Clerk:

NEP)(Appearance for Plaintiff: Phil Telfeyan)(Appearance for Defendant: Robert Phillips) (NEP) (Entered: 03/12/2020)

03/16/2020

79 ORDER: IT IS HEREBY ORDERED that the remaining deadlines in this matter are suspended and will be reset after the resolution of the pending motions before the Court. Signed by District Judge Rodney W. Sippel on 3/16/2020. (KEK) (Entered: 03/16/2020)

05/01/2020 80

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants' Motion to Dismiss under Federal Rule of Civil

Procedure 12(b)(1) [ 49 ] is DENIED. IT IS FURTHER

ORDERED that Defendants' Motion to Dismiss [ 49 ] is GRANTED as to Counts 1-4 and DENIED as to Count 5. IT IS FURTHER ORDERED that Defendants' Motion to Dismiss Governor Parsons in his official capacity is GRANTED. Signed by District Judge Rodney W. Sippel on 5/1/2020. (NEP) (Entered: 05/01/2020)

05/13/2020

81 ORDER...IT IS HEREBY ORDERED that a Status Conference will be held in this matter on Thursday, May 28, 2020 at 10:00 a.m. via telephone. Counsel should dial 888-684-8852 then when prompted enter access code: 6905106. (Status Conference set for 5/28/2020 10:00 AM in Telephone Conference in Chambers before District Judge Rodney W. Sippel.) Signed by District Judge Rodney W. Sippel on 5/13/2020. (NEP) (Entered: 05/13/2020)

05/28/2020

82 SCHEDULING ORDER: IT IS HEREBY ORDERED Plaintiffs' Motion for Preliminary Injunction shall be filed no later than June 1, 2020. Opposition briefs shall be filed no later than July 1, 2020 and any reply brief may be filed no later than July 15, 2020. Signed by District Judge Rodney W. Sippel on 5/28/2020. (KEK) (Entered: 05/28/2020)

06/01/2020

83 MOTION for Preliminary Injunction by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Exhibit Bedford Deposition, # 2 Exhibit Def. Resp. to Rogs, # 3 Exhibit Bedford Driving Record, # 4 Exhibit Mancini Declaration, # 5 Exhibit Mancini Deposition, # 6 Exhibit Gildehaus Driving Record, # 7 Exhibit Gildehaus Declaration, # 8 Exhibit Gildehaus Deposition, # 9 Exhibit Form 14 Instructions, # 10 Exhibit Suspension Memo, # 11 Exhibit Lummus Declaration, # 12 Exhibit Kissinger Deposition, # 13 Exhibit Ginwright Deposition, # 14 Exhibit Richards Deposition, # 15 Exhibit Hibbler Deposition, # 16 Exhibit Temporary Payment Plan, # 17 Exhibit FSD 30(b)(6)

06/29/2020 06/30/2020 06/30/2020
07/01/2020
07/15/2020

Deposition, # 18 Exhibit Notice of Intent, # 19 Exhibit Dr. Hahn Affidavit, # 20 Exhibit Puentes Affidavit, # 21 Exhibit Peterson Affidavit, # 22 Exhibit Sample Notice, # 23 Exhibit Bedford Declaration, # 24 Exhibit Smith Report, # 25 Exhibit Dr. Pearce Affidavit, # 26 Exhibit Dr. EgerAffidavit, # 27 Exhibit Def. Resp. to Rogs)(Hatton, Marissa) (Entered: 06/01/2020)
84 MOTION for Leave to File in Excess of Page Limits by Defendants Jackie Bemboom, Steve Corsi, Patrick Luebbering, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joel Walter. (Robb, Laura) (Entered: 06/29/2020)
85 NOTICE of Non-Opposition: by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini re 84 MOTION for Leave to File in Excess of Page Limits (Hatton, Marissa) (Entered: 06/30/2020)
86 Docket Text ORDER: Re: 84 MOTION for Leave to File in Excess of Page Limits by Defendants Jackie Bemboom, Steve Corsi, Patrick Luebbering, Missouri Department of Social Services Family Support Division, Michael L. Parson, Joel Walter. (Robb, Laura) filed by Michael L. Parson, Jackie Bemboom, Joel Walter, Patrick Luebbering, Steve Corsi, Missouri Department of Social Services Family Support Division; ORDERED GRANTED. Signed by District Judge Rodney W. Sippel on 6/30/2020. (KEK) (Entered: 06/30/2020)
87 MEMORANDUM in Opposition re 83 MOTION for Preliminary Injunction filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Attachments: # 1 Exhibit A- Ginwright Affidavit, # 2 Exhibit B- Gildenhaus Dep. Excerpts, # 3 Exhibit C- Mancini Dep. Excerpts, # 4 Exhibit DMancini Driving Records, # 5 Exhibit E- Ginwright Dep. Excerpts, # 6 Exhibit F- Kissinger 9-26-19 Dep. Excerpts, # 7 Exhibit GKissinger 2-14-20 Dep. Excerpts, # 8 Exhibit H- Bedford Dep. Excerpts, # 9 Exhibit I- Joint Responses to PL's First ROGS, # 10 Exhibit J- Kissinger Affidavit)(Robb, Laura) (Entered: 07/01/2020)
88 REPLY to Response to Motion re 83 MOTION for Preliminary Injunction filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Exhibit Excerpts of Dept. of Revenue Depo., # 2 Exhibit Supplemental Excerpts of Gildehaus Depo., # 3 Exhibit Supplemental Excerpts of Ginwright Depo., # 4 Exhibit Supplemental Excerpts of Hibbler Depo., # 5 Exhibit

07/28/2020
07/30/2020 08/06/2020 08/06/2020 08/07/2020
08/13/2020

Supplemental Excerpts of Richards Depo.)(Hatton, Marissa) (Entered: 07/15/2020)
89 ORDER: IT IS HEREBY ORDERED that the trial set in this cause for August 17, 2020 at 9:00 am is VACATED. IT IS FURTHER ORDERED that the Motion for Preliminary Injunction, 45 , filed by the plaintiffs on November 1, 2019 is DENIED as moot. IT IS FURTHER ORDERED that the Motion to Certify Class, 46 , filed by the plaintiffs on November 1, 2019 is DENIED without prejudice to be refiled after the court has issued an amended case management order. IT IS FURTHER ORDERED that the Motion for an Extension of Time to File a Response to Plaintiff's Rebuttal Reports, 65 is DENIED without prejudice. If the issue has not been resolved, the parties may refile the motion. Signed by District Judge Rodney W. Sippel on 7/28/2020. (KEK) (Entered: 07/28/2020)
90 ORDER: IT IS HEREBY ORDERED that a Scheduling Conference will be held in this matter on Thursday, August 6, 2020 at 10:00 a.m. via telephone. Counsel should dial 888-684-8852 then when prompted enter access code: 6905106. Signed by District Judge Rodney W. Sippel on 7/30/2020. (KEK) (Entered: 07/30/2020)
91 ORDER : IT IS HEREBY ORDERED that the parties shall file a proposed schedule and a list of outstanding discovery disputes no later than August 13, 2020. Signed by District Judge Rodney W. Sippel on 8/6/20. (ARL) (Entered: 08/06/2020)
92 NOTICE Availability for Hearing: by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini re 83 MOTION for Preliminary Injunction (Attachments: # 1 Text of Proposed Order)(Telfeyan, Phil) (Entered: 08/06/2020)
93 ORDER: IT IS HEREBY ORDERED that oral argument will be heard on Plaintiffs' Motion for Preliminary Injunction, 83 , on Thursday, September 3, 2020 at 11:00 a.m. in Court Room 16-S. IT IS FURTHER ORDERED that, within 7 days after this Courts ruling on Plaintiffs' Motion for Preliminary Injunction, the Parties will jointly submit a schedule for briefing on any motion for Class Certification and addressing any other relevant scheduling matters. Signed by District Judge Rodney W. Sippel on 8/7/2020. (KEK) (Entered: 08/07/2020)
94 MEMORANDUM Joint Statement of Outstanding Discovery Disputes by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Joseph Plaggenberg, Jennifer Tidball. (Robb, Laura) (Entered: 08/13/2020)

08/31/2020 09/03/2020
09/03/2020 09/10/2020 09/17/2020 09/24/2020 09/24/2020

95 ORDER: IT IS HEREBY ORDERED that the oral argument on Plaintiffs' Motion for Preliminary Injunction, ECF NO. 83 , currently scheduled for Thursday, September 3, 2020 at 11:00 a.m. is RESET to Thursday, September 3, 2020 at 10:00 a.m. in Court Room 16-S. Signed by District Judge Rodney W. Sippel on 8/31/2020. (KEK) (Entered: 08/31/2020)
96 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Rodney W. Sippel: Motion Hearing held on 9/3/2020 re 83 MOTION for Preliminary Injunction filed by Lisa Mancini, Camese Bedford, Ashley Gildehaus. Arguments heard. Motion taken under advisement. Order to follow. (Court Reporter: Shannon White, Shannon_White@moed.uscourts.gov, 314-244-7966) (proceedings started: 10:00 a.m.) (proceedings ended: 11:07 a.m.)(Deputy Clerk: ARL) (Appearance for Plaintiff: Marissa Hatton, Stephanie Lummas, Phil Telfeyan) (Appearance for Defendant: Robert Phillips, Laura Robb) (ARL) (Entered: 09/03/2020)
97 ORDER : IT IS HEREBY ORDERED the Plaintiffs shall file a proposed order regarding the named Plaintiffs no later than Thursday, September 10, 2020. Defendants will then have until Thursday, September 17, 2020 to respond. See Order for full details. Signed by District Judge Rodney W. Sippel on 9/3/20. (ARL) (Entered: 09/03/2020)
98 RESPONSE TO COURT ORDER re 97 Order, Plaintiffs' Proposed Order and Memo in Support of Proposed Order by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Hatton, Marissa) (Entered: 09/10/2020)
99 MEMORANDUM re 97 Order, by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Attachments: # 1 Errata A - Defendants Proposed Order Denying Preliminary Injunction)(Robb, Laura) (Entered: 09/17/2020)
100 MOTION to Compel Discovery Responses by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Joseph Plaggenberg, Jennifer Tidball, Kenneth Zellers. (Robb, Laura) (Entered: 09/24/2020)
101 MEMORANDUM in Support of Motion re 100 MOTION to Compel Discovery Responses filed by Defendants Reginald McElhannon, Missouri Department of Social Services Family Support Division, Joseph Plaggenberg, Jennifer Tidball, Kenneth

09/24/2020 09/24/2020
10/01/2020

Zellers. (Attachments: # 1 Exhibit A-Mancini RFP Responses 1-27, # 2 Exhibit B-Gildehaus RFP Responses 1-27, # 3 Exhibit CMancini Rog Responses, # 4 Exhibit D- Gildehaus Rog Responses 1-27, # 5 Exhibit E- 2020.01.31 Letter to Hatton & Telfeyan, # 6 Exhibit F- 2-26-20 Email from R. Phillips, # 7 Exhibit G- 3-220 Email from PL's to L. Robb, # 8 Exhibit H- 2020-03-02 Gildehaus Interrogatory Responses with Verification, # 9 Exhibit IGildehause RFP Responses 03-02, # 10 Exhibit J- Mancini RFP Responses 03-02, # 11 Exhibit K- 9-23-20 Email from PL to L. Robb)(Robb, Laura) (Entered: 09/24/2020)
102 STATUS REPORT (joint) regarding discovery disputes by Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Telfeyan, Phil) (Entered: 09/24/2020)
103 ORDER: IT IS HEREBY ORDERED that the Plaintiffs' Motion for Preliminary Injunction is held in ABEYANCE until the Court receives notification from Defendants that they plan to resume issuing new license suspensions for failure to pay child support. Signed by District Judge Rodney W. Sippel on 9/24/2020. (KEK) (Entered: 09/28/2020)
104 MEMORANDUM in Opposition re 100 MOTION to Compel Discovery Responses filed by Plaintiffs Camese Bedford, Ashley Gildehaus, Lisa Mancini. (Attachments: # 1 Exhibit Exhibit A, Gildehaus Depo, # 2 Exhibit Exhibit B, Mancini Depo.)(Telfeyan, Phil) (Entered: 10/01/2020)

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4:19-cv-00398RWS 1.50
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 Case: 4:19-cv-00398-RLW Doc. #: 1 Filed: 03/04/19 Page: 1 of 37 PageID #: 73

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

____________________________________

)

NATHAN WRIGHT and

)

CAMESE BEDFORD, on behalf of

)

themselves and others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

FAMILY SUPPORT DIVISION of the )

Missouri Department of Social Services; )

MICHAEL PARSON, in his official

)

capacity as Governor of Missouri;

)

STEVE CORSI, in his official capacity )

as Director of the Missouri Department of )

Social Services;

)

PATRICK LUEBBERING, in his official )

capacity as Director of the Family Support )

Division;

)

JOEL WALTER, in his official capacity )

as Director of the Department of Revenue; )

JACKIE BEMBOOM, in her official

)

capacity as Director of the Motor Vehicle )

and Driver Licensing Division,

)

)

Defendants.

)

____________________________________)

Case. No. 4:19-cv-398
CLASS ACTION JURY DEMANDED

Introduction

1. This case is about the Missouri Department of Social Services’ Family Support

Division and the Missouri Department of Revenue perpetuating a cycle of poverty by

unconstitutionally suspending the driver’s licenses of parents who are unable to pay child support.

Under Missouri law, the Family Support Division (FSD) has the authority to issue an order

suspending the driver’s license of any person who owes at least three months’ worth of child

support payments or at least $2,500, whichever is less. These suspensions are meant to coerce

1

Case: 4:19-cv-00398-RLW Doc. #: 1 Filed: 03/04/19 Page: 2 of 37 PageID #: 74
payment, but for those who cannot pay, the loss of a driver’s license counterproductively decreases the likelihood that a person will be able to pay child support, as it often leads to job loss, reduced employment opportunities, eviction, and greater difficulty carrying out the responsibilities of everyday life.
2. Moreover, suspending the driver’s licenses of non-custodial parents makes it more difficult for them to see their children regularly, pick them up for visitation, or share in caring for them by taking them to doctor’s appointments and participating in school activities. Thus, these license suspensions harm the interests of the children who are ostensibly meant to benefit from child support enforcement by making it virtually impossible for non-custodial parents with limited means to play a meaningful role in their children’s lives as well as ensuring that parents are unable to earn the money that they would gladly use to support their children.
3. Many parents whose licenses are suspended face an impossible choice: comply with the suspensions and lose their jobs, homes, and ability to care for their families, or drive illegally and face the threat of further debt and criminal charges if they are caught.
4. License suspension as a debt collection method is unconstitutional and irrational when enforced against people who cannot afford to pay: no amount of coercion can force money out of a person who has none. Missouri’s FSD traps parents in an inescapable cycle of poverty and criminal culpability by suspending their driver’s licenses.
5. FSD’s lack of ability-to-pay hearings, failure to provide competent responses to requests for reinstatement, and overall lack of accountability robs non-custodial parents of their ability to drive, thus severely hampering their ability to earn a living, provide for their children, and secure their families’ wellbeing.
2

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6. Suspending the licenses of parents who are unable to pay child support violates their substantive due process, equal protection, and procedural due process rights under the United States Constitution.
7. By and through their attorneys, on behalf of themselves and all others similarly situated, Plaintiffs Nathan Wright and Camese Bedford seek declaratory and injunctive relief against Defendants in their official capacities to end this unconstitutional wealth-based suspension scheme.
Nature of the Action 8. Defendants routinely suspend the driver’s licenses of parents who fail to pay child support, even if nonpayment is non-willful. Plaintiffs seek declaratory and injunctive relief prohibiting these suspensions. 9. Because Defendants enforce license suspensions as penalties for nonpayment with no indigence exception, the suspensions amount to wealth-based discrimination in violation of substantive due process and equal protection rights. 10. Because Defendants enforce a complete deprivation against parents who are completely unable to satisfy their child support requirements, affected parents are a suspect class, and Defendants’ discrimination violates equal protection rights, as it is not narrowly tailored to a compelling government interest. 11. Because license suspension impedes parents’ ability to travel without being narrowly tailored to a government interest, the suspensions violate substantive due process rights. 12. Because Defendants deprive parents of their property interest in their driver’s licenses without a meaningful hearing — that is, a pre-deprivation ability-to-pay hearing determining whether nonpayment was willful — or notice of such a hearing, the suspensions violate procedural due process rights.
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Jurisdiction and Venue 13. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 14. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 15. Plaintiff Nathan Wright is a 39-year-old resident of Farmington, Missouri. Ex. 1, Wright Decl. Mr. Wright currently owes approximately $30,000 in arrears for support of his daughter, who is now nineteen years old. Mr. Wright is unable to pay off his arrears. As a result of his inability to pay, Defendants suspended his driver’s license on May 24, 2018. Ex. 2, Wright Driver Record. Mr. Wright has custody of his two younger children, ages nine and four, and he is their sole provider and caretaker. Ex. 1, Wright Decl. 16. Plaintiff Camese Bedford is a 31-year-old navy veteran and a resident of St. Louis, Missouri. Ex. 3, Bedford Decl. Mr. Bedford’s driver’s license was suspended on February 25, 2017 because he owes over $2,500 in child support arrears that he cannot pay. Ex. 4, Bedford Driver Record. Mr. Bedford is currently unemployed, and his only income is the $140 he receives monthly in disability benefits, which covers only a fraction of his monthly expenses. Mr. Bedford’s license suspension has made it impossible for him to see his six-year-old daughter regularly. Ex. 3, Bedford Decl. 17. Defendant Family Support Division (“FSD”) is a division within the Department of Social Services charged with “administer[ing] the state plan for child support enforcement.” MO Rev. Stat. § 454.400. Under Missouri Revised Statute § 454.400.2(1), FSD can “be sued” as the division of child support enforcement.
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18. Defendant Michael L. Parson is the Governor of Missouri. As Governor, Mr. Parson is the head of the executive branch of the Missouri state government and is responsible for enforcing state law, including Missouri Revised Statute § 454.1003.1, which authorizes the FSD director to suspend the driver’s licenses of parents who fail to pay child support. Mr. Parson is sued in his official capacity as Governor.
19. Defendant Steve Corsi is the Director of Missouri’s Department of Social Services. The Department is responsible for “coordinating programs to provide public assistance to children and their parents,” including child support enforcement.1 Mr. Corsi is sued in his official capacity as Director of the Department of Social Services.
20. Defendant Patrick Luebbering is the Director of the Family Support Division of Missouri’s Department of Social Services. Under Missouri Revised Statute § 454.1003.1, “the director of the division of child support enforcement [FSD] may issue an order . . . suspending an obligor’s license and ordering the obligor to refrain from engaging in a licensed activity (1) [w]hen the obligor is not making child support payments in accordance with a support order and owes an arrearage in an amount greater than or equal to three months support payments or two thousand five hundred dollars, whichever is less, as of the date of service of a notice of intent to suspend such license.” Mr. Luebbering is sued in his official capacity as Director of the Family Support Division.
21. Defendant Joel Walters is the Director of Missouri’s Department of Revenue, which houses Missouri’s Motor Vehicle and Licensing Division. Mr. Walters is sued in his official capacity as Director of the Department of Revenue.
1 Office of the Director, Missouri Department of Social Services, https://dss.mo.gov/ddo/ (last visited Mar. 4, 2019).
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22. Defendant Jackie Bemboom is the Director of the Motor Vehicle and Driver Licensing Division, which is part of the Department of Revenue. Ms. Bemboom oversees the Driver License Bureau which “issues, renews, suspends, revokes, and reinstates driver and nondriver licenses and driving permits.”2 She is sued in her official capacity as Director of the Motor Vehicle and Driver Licensing Division.
23. At all times relevant to the events, acts, and/or omissions alleged in this Complaint, Defendants have acted under color of state law, pursuant to their authority and responsibilities as officials of the State of Missouri.
Factual Background I. Introduction
24. The Family Support Division of Missouri’s Department of Social Services (“FSD”) orders the suspension of the driver’s licenses of non-custodial parents who are not making child support payments and whose arrears total either three months’ payments or $2,500, whichever is less. MO Rev. Stat. § 454.1003.1(1).
25. FSD makes no inquiry into the reason for nonpayment before ordering these suspensions; there is no exception for parents who failed to pay because they could not afford their payments. There is no hearing to determine whether nonpayment was willful, and no notice is sent to parents informing them that they can contest suspension based on inability to pay.
26. The loss of a driver’s license only makes indigent parents less able to meet their child support obligations and less able to participate in their children’s lives and share in parenting responsibilities.
2Motor Vehicle and Driver Licensing Division, Missouri Department of Revenue, https://www.mo.gov/government/guide-to-missouris-government/department-of-revenue/ (last visited Mar. 4, 2019).
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II. Mr. Wright’s Arrears and Suspension 27. Nathan Wright is a 39-year-old resident of Farmington, Missouri. He is a single
father and the sole provider for his two younger children, ages nine and four. Ex. 1, Wright Decl. 28. Mr. Wright also has a nineteen-year-old daughter who was in her mother’s custody
when she was a minor. In 2006, Mr. Wright was ordered to pay $900 per month in child support for his daughter. After hiring a lawyer and spending a lot of time and money, Mr. Wright eventually managed to get his payment amount reduced to $509. He has not been able to afford these payments, even at the reduced amount. Id.
29. Mr. Wright currently owes over $30,000 in arrears. He has not been able to make a payment since April of 2018. Id.
30. Because of his unpaid child support, Defendants suspended Mr. Wright’s license on May 24, 2018. Id.; see also Ex. 2, Wright Driver Record.
31. Prior to suspending Mr. Wright’s license, FSD sent him a letter informing him that his license would be suspended if he did not either pay off his arrears or enter into a payment plan. Mr. Wright could not afford to pay off the arrears, so he called FSD to try to set up a payment plan. He was told that his only option was to pay his regular court-ordered payments of $509 per month. FSD did not offer Mr. Wright any option for making smaller payments to avoid license suspension. Ex. 1, Wright Decl.
32. Since Mr. Wright’s divorce from his most recent wife in April of 2018, there has been no one to help him care for his two younger children. As a result, he has been forced to cut back on his work hours so that he can take his kids to school and daycare and be available to pick them up at the end of the day. Id.
33. Mr. Wright has to drop off his four-year-old daughter around 8:00am and be back in Farmington by 3:00pm to pick up the kids from school. Because the drive to St. Louis is an
7

Case: 4:19-cv-00398-RLW Doc. #: 1 Filed: 03/04/19 Page: 8 of 37 PageID #: 80
hour-and-a-half long, Mr. Wright only has about four hours each day when he is actually able to be working. He also is at a disadvantage because most of the jobs in his field begin around 6:00am, but he is not available to start any jobs until 9:30am at the earliest. Id.
34. When he was married and able to work more hours while his wife cared for the children, Mr. Wright worked for a union and earned about $40,000 per year. Now that he works fewer hours, he is self-employed and his income has been reduced to about $20,000 to $30,000 per year. This income change impacted Mr. Wright’s ability to make payments on his arrears, and he has not been able to make a payment since his divorce. Id.
35. All of Mr. Wright’s income goes toward his and his children’s living expenses. He has to pay about $400 per month for daycare, $550 in rent, and $200 in utilities. He also spends about $500 per month on groceries and about $600-$800 on gas and various needs for the children. Mr. Wright does not receive any support from his younger children’s mother. Often, Mr. Wright’s expenses exceed his income. For this reason, he has no savings and is not able to save any money. Id.
36. Mr. Wright had no choice but to continue driving once his license was suspended. He is a self-employed contractor who does painting and dry-walling jobs in St. Louis, an hourand-a-half drive from his home in Farmington. He has to haul all his painting and dry-walling equipment with him to jobs, including large items such as scaffolding, ladders, and benches. Id.
37. Mr. Wright also needs to drive to carry out his many childcare responsibilities. His four-year-old daughter’s daycare is ten miles from their house. His children’s doctors are a 40minute drive away, and the nearest grocery store is ten miles away. Mr. Wright and his children live outside the city of Farmington and must drive at least ten miles into town whenever they need anything. Mr. Wright’s nine-year-old son plays for a travel football and soccer team that Mr.
8

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Wright helps coach. There is no one else available to drive the boy to and from practices, and the games are usually about an hour’s drive from Farmington. Id.
38. Driving on a suspended license presents a significant risk for Mr. Wright. If he is caught, he could face criminal charges. MO Rev. Stat. § 302.321; see also Ex. 1, Wright Decl.
39. Mr. Wright has a Class D felony on his record from 2008 for criminal nonpayment of child support.3 He has never been charged with any other crime. There is a warrant out for his arrest for his criminal nonpayment. If he is ever pulled over, he will likely be arrested. This is a terrifying prospect because if Mr. Wright is jailed, there will be no one available to care for his two young children, since their mother is currently in jail and struggles with a drug addiction. Ex. 1, Wright Decl.
40. Mr. Wright tried to work with the St. Charles County prosecutor to have the warrant lifted, but he was told that he would have to pay $3,600 just to get the warrant lifted. He cannot possibly afford to pay that amount. Id. III. Mr. Bedford’s Arrears and Suspension
41. Camese Bedford is a 31-year-old resident of St. Louis, Missouri. He is a veteran of the United States Navy and served in the Second Gulf War. Ex. 3, Bedford Decl.
42. Mr. Bedford currently owes $2,851 in child support arrears. Ex. 5, Bedford Payment Information.
3 Under MO Rev. Stat. section 568.040(5), “[t]he offense of criminal nonsupport is a class A misdemeanor, unless the total arrearage is in excess of an aggregate of twelve monthly payments due under any order of support issued by any court of competent jurisdiction or any authorized administrative agency, in which case it is a class E felony.” Mr. Wright was charged with a class D felony because his offense of nonsupport with a total arrearage in excess of an aggregate of twelve monthly payments predated the Missouri legislature’s downgrading of the offense from a class D to a class E felony, which became effective on January 1, 2017. Crimes and Offenses— Rules and Regulations, 2014 Mo. Legis. Serv. S.B. 491 (Vernon’s) (West’s No. 9).
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43. Mr. Bedford found out around August of 2017 that his driver’s license was suspended because he had failed to pay child support for his six-year-old daughter, who lives with Mr. Bedford’s ex-wife. He does not recall ever receiving a suspension notice in the mail. Id.
44. Until that time, Mr. Bedford had not realized that he was supposed to be making child support payments. He found out when he received a letter informing him that there was a warrant out for his arrest because of nonpayment of child support. When he called the number provided, he was informed that he was supposed to be paying $278 per month and that he owed at least $2,500 in arrears. He also found out that as a result of his nonpayment, he had been charged with a class A misdemeanor. Id.
45. Mr. Bedford had not realized that he was supposed to be making child support payments because the order was made as a default judgment against him when he did not attend his divorce proceedings. He did not attend because he was still hoping that he and his then-wife could work out their differences and avoid divorce. Id.
46. Mr. Bedford was told that his license would not be reinstated until he paid off all his arrears. Id.
47. Mr. Bedford is indigent and cannot afford to pay off his arrears. He cannot even afford his everyday necessities. He is currently unemployed, and his only income is the $140 he receives monthly in disability benefits, which barely covers half his rent ($278 per month), let alone his utilities ($50 per month), phone bill ($86 per month), and other household expenses such as food and supplies ($120 per month). In fact, Mr. Bedford is often hungry because he cannot afford to feed himself properly. Id.
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48. Mr. Bedford’s monthly child support obligation was reduced in January of 2019 to $194, which includes a payment toward his arrears. He made his payment in February of 2019, but at his current income level, he will not be able to make regular payments going forward. Id.
49. Mr. Bedford’s last steady job was as an apprentice gardener with a Veterans Affairs medical facility. He started working there in 2017, but in June of 2018, he was involved in a workrelated car accident and had to stop working due to his injuries. Id.
50. Mr. Bedford also used to receive $1,097 per month from the VA, but the VA stopped these payments in December of 2018 when they realized that he was no longer married. Mr. Bedford has filed a correction of his marital status, but he does not know whether or when he will receive support from the VA again. Id.
51. Currently, because he is unemployed and no longer receives support from the VA, Mr. Bedford’s only income is the $140 in disability that he receives for a medical condition he suffered as a result of his navy service. Id.
52. Mr. Bedford’s lack of a valid driver’s license severely limits his job prospects, which are already limited due to a shoulder injury that prevents him from lifting heavy loads. Id.
53. Mr. Bedford can only take jobs within walking distance of his home because he cannot drive and cannot always afford bus fare. He worked at Family Dollar for a short time recently, but he was only able to keep the job for about three weeks because he could not afford bus fare to get there every day reliably. Id.
54. Walking is also difficult for Mr. Bedford. He has a skin condition on his feet that started during his navy service. It is painful and makes it uncomfortable for him to walk long distances. Id.
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55. Mr. Bedford has experienced homelessness in the past, and with his income severely affected by his driver’s license suspension, he worries that he will soon become homeless again. Id.
56. Mr. Bedford does not own a car, but he was planning to purchase one until he found out his license was suspended. If his license were not suspended, he would rent or lease a car to go to work and to see his daughter regularly. Id.
57. Not being able to drive makes it very difficult for Mr. Bedford to see his six-yearold daughter. Under his new child support agreement, he is entitled to overnight visitation with his daughter every weekend. But most weekends, Mr. Bedford’s inability to drive makes seeing his daughter impossible. Id.
58. Mr. Bedford’s daughter lives with her mother, about a 40-minute drive from Mr. Bedford’s home. By bus, the trip takes two hours. Often, Mr. Bedford is unable to pick his daughter up for their visits because he cannot afford bus fare. Additionally, the buses run less often and on a shorter schedule on the weekends, and Mr. Bedford worries that it is too cold outside in the winter for his young daughter to be waiting at the bus stop with him for long periods of time. Id.
59. Due to his transportation challenges, Mr. Bedford has not seen his daughter at all for about a month. Most of their communication is over the phone. Id.
60. Being a father to his six-year-old daughter means everything to Mr. Bedford. He is extremely concerned about the effect that his physical absence has on her wellbeing and her future. He believes that if he is not reliably present in her life, she could end up being a statistic. Id.
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61. Mr. Bedford believes that his daughter is depressed as a result of his inability to spend time with her. She has told him that she thinks she is going to have to get a new daddy even though she does not want a new one. Id. IV. Missouri’s Family Support Division Traps Impoverished Parents in a Cycle of
Poverty A. Defendants Suspend the Licenses of Non-Custodial Parents Who Fail to Pay
Child Support, Even Those Who Are Unable to Pay 62. Under MO Rev. Stat. § 454.1003.1(1), the FSD director has the authority to issue an order suspending the driver’s license of any person who “is not making child support payments in accordance with a support order and owes an arrearage in an amount greater than or equal to three months support payments or two thousand five hundred dollars, whichever is less, as of the date of service of a notice of intent to suspend such license.” 63. In cases in which the custodial parent is receiving some sort of assistance from the Office of Child Support Enforcement, which may include establishing and enforcing a child support order (“IV-D cases”), the FSD director has the authority to issue a notice of intent to suspend a license or to request that a court issue such a notice. MO Rev. Stat. § 454.1003.2. 64. The notice of intent to suspend states that the individual’s license “shall be suspended sixty days after service unless, within such time,” the person: “(1) Pays the entire arrearage stated in the notice; (2) Enters into and complies with a payment plan approved by the court or the division; or (3) Requests a hearing before the court or the director.” MO Rev. Stat. § 454.1003.3. 65. Parents who cannot afford to make their child support payments cannot avail themselves of the first option for avoiding suspension because, under 454.1003.1(1), the total arrearage is at least three months’ payments or $2,500 — both minimums, and both insurmountable costs for those who are not even able to make their monthly payments.
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66. The payment plan referenced in the second option for avoiding suspension is not guaranteed to be affordable for the individual. In fact, when Mr. Wright called FSD to inquire about this option, he was told that the only monthly payment amount that would avoid suspension was his regular court-ordered amount of $509, which he is unable to afford. Ex. 1, Wright Decl.
67. The final option for avoiding suspension is to request a hearing before the court or director. But for parents who are facing license suspension because of past-due child support, the only issues that may be addressed in this hearing are whether the parent is the correct person; whether the amount of the parent’s past-due support is greater than or equal to three months of support payments or $2,500, whichever is less, by the date of service of the notice; and whether the parent entered into a payment agreement. That is, the hearing specifically precludes any opportunity for an individual to contest suspension based on inability to make child support payments.
68. Administrative law judges do not allow any testimony regarding inability to pay, financial hardship, disabilities, homelessness, or any other mitigating circumstances other than a mistake having been made in the financial calculation at the hearing. Ex. 6, Lummus Decl. Lawyers who try to introduce this type of evidence are routinely informed that it is not permitted. Id.
69. Defendants therefore suspend the driver’s licenses of non-custodial parents who fail to pay child support once their arrears reach three months’ worth or $2,500, without any exception for those whose failure to pay was non-willful and caused only by inability to pay.
B. Once Defendants Suspend a Parent’s License for Unpaid Child Support, It Is Very Difficult to Obtain Reinstatement, even if the Parent Manages to Start Making Regular Payments
70. Once Defendants suspend a parent’s license for unpaid child support, it is very difficult to obtain reinstatement, even if the parent manages to start making regular payments.
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71. Missouri law does not mandate reinstatement of a parent’s license unless and until “a court or the division determines that an arrearage has been paid in full.” MO Rev Stat § 454.1013.1.
72. FSD ostensibly offers stays on suspensions to parents who begin to make timely payments according to their current child support order and toward any arrears owed. Ex. 6, Lummus Decl. But for parents who cannot afford their regular payments, the stay option is of little use.
73. Moreover, the process for obtaining a stay is onerous, opaque, and inconsistent. Lawyers attempting to obtain stays on suspensions for their clients who owe unpaid child support often do not receive replies when they submit requests to FSD, and FSD agents often insist that they are not familiar with the stay process when lawyers place phone calls to check on the status of their requests. Id. Thus, once a license is suspended for unpaid child support, obtaining a stay on the suspension is not guaranteed even for a parent who manages to start scraping together regular payments. The success of the request hangs on the person who happens to answer the phone that day at FSD. Id.
74. Even if a parent does manage to obtain a stay on the suspension, FSD will remove the stay immediately if the payments lapse or lag, which often happens when parents are struggling enough financially that they fell behind in the first instance. Id. On information and belief, there is no notice sent to parents when a stay is removed. Id.
75. Once a parent manages to secure a job and begin paying regular support, the path toward driver’s license reinstatement through FSD can be impossible to navigate with or without an attorney. Id.
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76. Although FSD claims to have a reinstatement process, it is, in practice, entirely without clear process, clear guidelines, or communication. The process is generally a formality without real function or relief. Id.
77. Even experienced attorneys attempting to navigate the reinstatement process have no clear idea as to how it is supposed to work. Id.
78. Moreover, FSD refuses to consistently copy an attorney of record on any correspondence or any centralized intake point for addressing this issue. Id.
79. Attorneys make in-person visits to the child support offices, file certified petitions with official offices in Jefferson City, request hearings they know are fruitless, and spend countless hours on the phone, fax, and email attempting to navigate this process to no avail. Id.
80. It is practically impossible for a pro se petitioner to navigate the reinstatement process. Id.
81. Most suspensions for nonpayment of child support last years or even decades due to the cycle of poverty as well as the lack of any clear path to reinstating a driver’s license even after payments are being made. Id.
C. License Suspension Drives Parents Further into Poverty and Invites Further Infractions
82. Usually, driver’s license suspension is the first ramification that noncustodial parents face for falling behind on their payments. Ex. 6, Lummus Decl. Once parents lose their driver’s licenses, they are more likely to become ensnared in the criminal courts. Id.
83. These suspensions leave effects that are widespread and devastating, perpetuating a cycle of poverty and despair and further breaking apart vulnerable families. Id.
84. Indigent parents with suspended licenses face an impossible choice: If they stop driving, they may lose their jobs, be unable to visit or help care for their children, not be able to
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keep appointments with doctors or service providers, miss court appearances, and innumerable other potential consequences. If they keep driving, they face the risk of being caught driving on a suspended license.
i. Living Without a Driver’s License Is Extremely Difficult, Especially in a State Like Missouri
85. Living without being able to drive legally is extremely difficult. 86. FSD’s punitive suspension scheme imposes significant hardship on indigent noncustodial parents and their families. 87. Once parents’ licenses are suspended, their socioeconomic circumstances devolve. Ex. 6, Lummus Decl. 88. Many parents cannot make their child support payments because doing so would leave them unable to pay for basic essentials like food and shelter. 89. Many parents cannot make their child support payments because they have been forced into extreme financial hardship by health care expenses. 90. Once parents have reached the point at which their arrears are high enough to trigger suspension orders, the amounts they need to pay to get their licenses reinstated are astronomically high for people already scraping by. 91. Not having a valid driver’s license bars people from employment opportunities. “Not all jobs require a driver’s license, particularly those that pay very low wages. But having one is a very common requirement for the sorts of job that can actually lift people out of poverty.” Alana Semuels, No Driver’s License, No Job, The Atlantic (June 15, 2016).4
4 Available at https://www.theatlantic.com/business/archive/2016/06/no-drivers-license-nojob/486653/.
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92. Indeed, a rigorous study of New Jersey drivers found that 42% of drivers lost their jobs after their driver’s licenses were suspended. Driver’s License Suspensions, Impacts and Fairness Study, at 56.5
93. Of those drivers, 45% were unable to find new employment. Id. 94. Of those that were able to find another job, 88% reported a decrease in income. Id. 95. This trend holds true in Missouri, where parents with suspended licenses are not able to drive to work or apply for many jobs. Ex. 6, Lummus Decl. 96. It is extremely difficult to get from place to place in Missouri without a car. 97. There are few options for public transportation, especially in the rural parts of the state. 98. Parents who cannot drive are cut off from any job opportunities in neighboring counties, including St. Charles, Jefferson County, Franklin County, and parts of Illinois. Ex. 6, Lummus Decl. 99. Even if a parent is only traveling within the city of St. Louis, public transportation adds two additional travel hours one way (four hours per day). Id. 100. Missouri’s geography does not lend itself to supporting a mass public transportation system. See Missouri Commuters and Means of Transportation, Missouri Census Data Center (May 20, 2015) (“. . . Missouri simply does not have the same potential for the use of public transportation networks that the smaller, more urbanized states of the Northeast do. . .”).6 101. While Missouri’s most developed cities have their own public transportation systems, for those who live outside the big cities, there are only two services that provide
5 Available at https://www.nj.gov/transportation/refdata/research/reports/FHWA-NJ-2007-020V1.pdf. 6 https://census.missouri.edu/missouri-commuters/ (last visited Jan. 24, 2019).
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transportation in rural Missouri: OATS Transit and SMTS. OATS picks its customers up at their homes. How to Ride OATS Transit, OATS Transit.7 However, to take advantage of this service, OATS customers have to call up to ten days in advance to schedule a ride. Id. And SMTS only provides medical transportation for people who need to get to medical appointments. See Services, SMTS Anyone Can Ride.8
102. The overwhelming majority of Missourians drive to work. In 2015, 87% of them commuted to work by car. Missouri Commuters and Means of Transportation, Missouri Census Data Center (May 20, 2015).9 The 2017 American Community Survey reported that a Missourian’s average commute to work takes 47.7 minutes. See Means of Transportation To Work By Selected Categories of Workplace Geography, American Fact Finder U.S. Census Bureau.10
103. In many cases, FSD’s punitive suspension scheme forces parents with suspended licenses to choose between driving illegally and losing their jobs.
104. Once a parent’s livelihood disappears, eviction and homelessness soon follow. Ex. 6, Lummus Decl.
105. Because driving on a suspended license is a misdemeanor (and can be a felony on the fourth or subsequent offense), FSD’s suspension scheme creates a downward spiral from poverty to criminal culpability: unpaid child support leads to suspension, which often leads to the offense of driving without a valid license.
ii. Driving with a Suspended License Is a Misdemeanor Punishable with Fines and Jail Time
7 https://www.oatstransit.org/ride (last visited Jan. 24, 2019). 8 http://ridesmts.org/services/ (last visited Jan. 24, 2019). 9 https://census.missouri.edu/missouri-commuters/ (last visited Feb. 8, 2019). 10https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_5Y R_S0804&prodType=table. (last visited Jan. 18, 2019).
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106. Under MO Rev. Stat. § 302.321.1, “A person commits the offense of driving while revoked if such person operates a motor vehicle on a highway when such person’s license or driving privilege has been cancelled, suspended, or revoked under the laws of this state or any other state and acts with criminal negligence with respect to knowledge of the fact that such person's driving privilege has been cancelled, suspended, or revoked.”
107. “Any person convicted of driving while revoked is guilty of a misdemeanor. A first violation of this section shall be punishable as a class D misdemeanor. A second or third violation of this section shall be punishable as a class A misdemeanor.” MO Rev. Stat. § 302.321.2.
108. A person who is caught driving on a suspended license and is convicted for the first time is guilty of a class D misdemeanor, which is punishable by a fine of up to $500. Id.; MO Rev. Stat. § 558.002.1(5).
109. A person who is caught driving on a suspended license and is convicted for the second or third time is guilty of a class A misdemeanor, which is punishable by a fine of up to $2,000 and up to one year in jail. MO Rev. Stat. §§ 302.321.2, 558.002.1(2), 558.011.1(6).
110. A person who is caught driving on a suspended license and is convicted for the fourth or subsequent time can be guilty of a class E felony if the previous three offenses occurred within ten years of the most recent offense. MO Rev. Stat. § 302.321.2. A class E felony is punishable by a fine of up to $10,000 and a prison sentence of up to four years. MO Rev. Stat. §§ 558.002.1(1), 558.011.1(5).
111. The statute contains no exception for situations in which driving is a necessity. iii. Failure to Pay Child Support Is a Criminalized Offense in Itself
112. Noncustodial parents who cannot afford to make their child support payments are already criminalized under Missouri law. MO Rev. Stat. § 568.040.
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113. Under MO Rev. Stat. § 568.040(1), “[A] parent commits the offense of nonsupport if such parent knowingly fails to provide adequate support which such parent is legally obligated to provide for his or her child or stepchild who is not otherwise emancipated by operation of law.” The statute contains no exception for parents whose failure to pay child support is due to inability to pay.
114. “The offense of criminal nonsupport is a class A misdemeanor, unless the total arrearage is in excess of an aggregate of twelve monthly payments due under any order of support issued by any court of competent jurisdiction or any authorized administrative agency, in which case it is a class E felony.” MO Rev. Stat. § 568.040(5).
115. A class A misdemeanor is punishable by a fine of up to $2,000 and up to one year in jail. MO Rev. Stat. §§ 558.002.1(2), 558.011.1(6).
116. A class E felony is punishable by a fine of up to $10,000 and a prison sentence of up to four years. MO Rev. Stat. §§ 558.002.1(1), 558.011.1(5).
117. When parents have criminal convictions for falling behind on child support payments, the courts and state agencies task them with finding employment and reliable transportation in addition to paying back any child support arrearages they owe — meanwhile, FSD hamstrings their ability to complete these tasks by suspending their driver’s licenses. Ex. 6, Lummus Decl.
118. Therefore, because nonpayment of child support itself is a criminal offense, even a felony in some cases, noncustodial parents who cannot afford their child support payments already face unavoidable criminal charges and fines, and driver’s license suspension only compounds this dangerous downward spiral into further poverty and further entanglement with the criminal justice system.
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V. FSD’s Punitive Suspensions Violate Plaintiffs’ Equal Protection and Due Process Rights 119. Defendants’ indefinite suspension of non-custodial parents’ driver’s licenses
because of their inability to pay child support violates their constitutional rights under the Equal Protection and Due Process Clauses.
A. Defendants’ Punitive Suspension Scheme Violates Equal Protection and Substantive Due Process Because It Discriminates on the Basis of Wealth
120. Defendants suspend parents’ driver’s licenses as punishment for their failure to pay, and punishing people for failing to make payments that they cannot afford to pay is wealth-based discrimination. See, e.g., Bearden v. Georgia, 461 U.S. 660, 660 (1983) (holding that it discriminates on the basis of wealth to revoke probation because a probationer is unable to pay fines and restitution); see also Griffin v. Illinois, 351 U.S. 12, 18 (1956) (holding that it discriminates on the basis of wealth to deny access to an appeal solely because of inability to pay court costs); Tate v. Short, 401 U.S. 395, 395 (1971) (holding that it discriminates on the basis of wealth to jail a person for inability to pay a fine); Williams v. Illinois, 399 U.S. 235, 240–41 (1970) (holding that it discriminates on the basis of wealth to imprison a person beyond the maximum period fixed by statute solely because he cannot pay fines or court costs).
121. Defendants suspend driver’s licenses without first determining whether the nonpayment was willful or whether the parent was simply too poor to pay.
122. Thus, FSD’s punitive suspension scheme inevitably results in individuals being punished for their inability to pay.
123. Punishing a person solely for his or her inability to pay constitutes wealth-based discrimination in violation of equal protection and due process.
124. FSD’s punitive suspension scheme is not rationally related to any legitimate government objective because suspending driver’s licenses impedes indigent parents from
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obtaining or maintaining employment in order to meet their financial obligations and also impedes their ability to participate actively in parenting their children.
125. Driver’s licenses are often essential in the pursuit of a livelihood, and their suspension threatens important interests of the people who hold them.
126. License suspension is counterproductive to FSD’s interests in collecting unpaid child support from indigent parents because it prevents such parents from working and can cost them additional expenses in the form of fines for driving on a suspended license.
127. For indigent parents, avoiding driver’s license suspension does not operate as an incentive to pay child support. Most people will do whatever it takes to make sure their children are cared for; if they owe enough unpaid child support that they are facing license suspension, it is only because they cannot afford to pay it. And when parents must choose between paying arrears and paying rent, buying medication, feeding their families, and other necessary expenses, they cannot prioritize arrears.
128. For parents who cannot pay, coercing payment by license suspension is irrational and counterproductive; suspension makes it less likely — rather than more likely — that people will be able to pay child support.
129. The loss of a license often means the loss of reliable transportation to and from work, which makes parents less able to meet their child support obligations.
130. Suspending driver’s licenses — especially for people who are poor — causes unemployment and homelessness and thus exacerbates a cycle of poverty.
131. License suspension is also counterproductive to the best interests of the children of parents with unpaid child support because when they cannot drive, they cannot visit their children,
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drive them to school, drive them to the doctor, or otherwise engage in the everyday caretaking responsibilities of being a parent.
132. In many cases, the noncustodial parents’ resultant inability to participate in childcare responsibilities and visitation leads to a breakdown in family dynamics, as custodial parents begin to resent the noncustodial parents’ perceived failures and lack of reliability. Ex. 6, Lummus Decl. A custodial parent may even conclude that the noncustodial parent is not fit to be an involved parent due to their diminished income capacity and lack of mobility, which can significantly harm a noncustodial parent’s relationship with the children. Id. It is not uncommon for the custodial parent to deny visitation based on the non-custodial parent’s lack of transportation or dependency on public transportation. Id.
B. Defendants’ Punitive Suspension Scheme Violates Equal Protection Because It Discriminates on the Basis of Wealth Without Being Narrowly Tailored to a Compelling Government Interest
133. Although poverty is usually not a suspect class, in this case, Defendants’ enforcement of failure-to-pay suspensions is subject to heightened scrutiny because indigent parents are completely unable to pay their arrears, and license suspension completely deprives them of their ability to drive legally. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 (1973). Therefore, because Defendants’ punitive suspensions are not narrowly tailored to the collection of child support or the best interests of children, they are unconstitutional.
134. Plaintiffs’ poverty renders them completely unable to pay off their arrears to reinstate their licenses. It is not the case that the cost of paying the debt is “great, but not insurmountable,” nor are Plaintiffs “persons with relatively less money on whom designated fines impose heavier burdens.” San Antonio, 411 U.S. at 21–22. Rather, Plaintiffs are completely unable to pay. Plaintiffs have not managed to pay off their arrears and get their licenses reinstated
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because they cannot do so without foregoing basic life necessities; that is, they are completely unable to pay the amount required.
135. FSD’s imposition of driver’s license suspensions against indigent parents like Plaintiffs constitutes an absolute deprivation of the ability to drive. Plaintiffs have no option that allows them to drive legally while their licenses are suspended, and their suspensions were the result of a complete inability to satisfy their child support obligations. Thus, this case is one in which poverty is a suspect class.
136. Since this case falls into the exception in which poverty is a suspect class, the FSD’s suspensions violate equal protection because they are not “narrowly tailored to serve a compelling government interest.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219 (1995).
137. For parents who are indigent, failure-to-pay suspensions are not even rationally related to the state interest of child support collection because they are actually counterproductive, causing parents to lose income.
138. Nor are suspensions narrowly tailored, or even rationally related, to the goal of protecting the best interests of Missouri’s children, since license suspension makes noncustodial parents less available to their children and often directly impedes parent-child relationships.
C. Defendants’ Punitive Suspension Scheme Violates Substantive Due Process Because It Infringes on Plaintiffs’ Fundamental Right to Travel
139. Plaintiffs have a fundamental due process right to travel. See, e.g., Saenz v. Roe, 526 U.S. 489 (1999). Although there is no fundamental right to drive, the Supreme Court has guaranteed freedom of movement to people who are poor as well as to the rich. Allowing states to limit the movement of those who are indigent “would also introduce a caste system utterly incompatible with the spirit of our system of government.” Edwards v. People of State of California, 314 U.S. 160, 181 (1941) (Douglas, J., concurring).
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140. While the Eighth Circuit has not ruled definitively on the issue, other circuits have specifically recognized a fundamental right to intrastate travel. See, e.g., King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971); see also Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002).
141. Because their licenses are suspended, Plaintiffs cannot travel on Missouri’s roadways without risking criminal consequences.
142. Plaintiffs’ suspensions are therefore an “actual barrier to intrastate movement.” Weems v. Little Rock Police Dept., 453 F.3d 1010, 1016 (8th Cir. 2006).
143. Plaintiff Wright in particular lives in a rural area where public transportation options are extremely limited.
144. Plaintiff Bedford must rely on the bus for transportation, and he is often unable to afford a bus pass. Ex. 3, Bedford Decl.
145. Plaintiffs cannot afford to pay for taxis or other car services for daily commuting and living.
146. Defendants have suspended Plaintiffs’ licenses simply because they are unable to pay their debts and therefore have impeded their fundamental right to intrastate travel.
147. Because it implicates a fundamental liberty interest, Defendants’ suspension scheme must be narrowly tailored to achieve compelling state objectives.
148. Defendants’ suspension scheme is not limited in scope; it is a broad prohibition on all driving in all locations at all times in all circumstances for an indefinite period.
149. While the collection of child support is a significant state interest, suspending the driver’s licenses of parents who cannot pay is not narrowly tailored to collection. Indeed, it is
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counterproductive because it hampers Plaintiffs’ ability to make a living and pay their essential expenses, thus decreasing their ability to pay court debts.
D. Defendants’ Punitive Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing or Provide Notice of Such a Hearing
150. A person’s driver’s license is recognized as a property interest that may not be taken away without due process of law. Bell v. Burson, 402 U.S. 535 (1971). Due process requires the state of Missouri to conduct pre-deprivation ability-to-pay hearings and to provide notice that such hearings are available.
151. The pre-deprivation hearing must contemplate ability to pay. Because Defendants suspend parents’ driver’s licenses due to their failure to pay (child support), a meaningful hearing in this context is one that determines whether the nonpayment was willful, since parents’ willfulness speaks directly to their liability for the failure to pay.
152. The ability-to-pay hearing must be available before suspension takes effect. The purpose of FSD’s punitive suspension scheme is to coerce payment and to punish, not to get dangerous drivers off the road. Therefore, there is no urgent safety need calling for immediate suspension, and Plaintiffs and others similarly situated are entitled to an ability-to-pay hearing prior to license suspension.
153. Missouri law does not currently guarantee or even allow a pre-deprivation abilityto-pay hearing for parents facing suspension due to unpaid child support. The only hearing that is available is one specifically limited to ensuring that no errors were made in the calculations. Ex. 6, Lummus Decl. Administrative law judges will not allow any testimony concerning inability to pay at these hearings. Id.
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154. Due process also requires that all parents facing suspension for unpaid child support receive adequate notice that a pre-deprivation hearing is available and that they can raise inability to pay as a defense at that hearing.
155. Prior to suspending a parent’s driver’s license for unpaid child support, FSD does not provide any notice informing the parent of any right to an ability-to-pay hearing. In fact, parents are specifically informed that they cannot raise inability to pay as a defense.
156. Moreover, FSD does not independently review the parent’s ability to pay before or after ordering the harsh punishment of suspension. Thus, Defendants suspend licenses without any consideration of ability to pay.
157. Because Missouri law does not require a pre-deprivation ability-to-pay hearing for parents facing driver’s license suspension for unpaid child support, there is a high risk that indigent parents will be deprived of their driver’s licenses for reasons directly attributable to their poverty.
Class Action Allegations 158. Named Plaintiffs Nathan Wright and Camese Bedford bring this action, on behalf of themselves and all others similarly situated, to assert the claims alleged in this Amended Complaint on a common basis. 159. A class action is a superior means, and the only practicable means, by which named Plaintiffs and unknown Class Members can challenge Defendants’ unlawful punitive suspension scheme. 160. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(l)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure. 161. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
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162. Plaintiffs propose a declaratory and injunctive class defined as: All individuals whose Missouri driver’s licenses are, or will be, suspended for failure to pay child support under MO Rev. Stat. § 454.1003 and whose reason for nonpayment was, or will be, inability to pay. I. Numerosity — Fed. R. Civ. P. 23(a)(1)
163. Class Members are so numerous as to make joinder impracticable. This is a statewide Class that includes all parents whose licenses are currently suspended because of their inability to pay child support as well as all parents who will suffer such suspension during the pendency of this lawsuit.
164. In 2018 alone, Class counsel litigated the cases of 39 parents in whose licenses were suspended due to their inability to make their child support payments. Moreover, Class counsel’s St. Louis office receives five to ten requests every month for assistance with this issue, and the office receives many more requests from affected parents throughout the state of Missouri.
165. Named Plaintiffs’ inclusion of future Class Members in their Class definition also makes joinder impracticable.
166. Named Plaintiffs conservatively estimate that tens of thousands of Missouri parents currently have suspended driver’s licenses because they cannot afford to make their child support payments. II. Commonality — Fed. R. Civ. P. 23(a)(2)
167. The relief sought is common to all Class Members, and common questions of law and fact exist as to all Class Members. Named Plaintiffs seek relief concerning whether FSD’s suspension scheme violates the rights of Class Members, and they seek relief mandating that Defendants end the scheme so that the constitutional rights of Class Members will be protected in the future.
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168. These common legal and factual questions arise from one scheme: Defendants’ driver’s license suspensions based on inability to pay child support. The material requirements of the relevant statutes do not vary from Class Member to Class Member, and the resolution of these legal and factual issues will determine whether all Class Members are entitled to the relief they seek.
169. Among the most important, but not the only, common questions of fact are:  Whether FSD has a policy and practice of using driver’s license suspension to
coerce child support payments from non-custodial parents who are unable to pay;  Whether FSD has a policy and practice of suspending driver’s licenses without
conducting meaningful inquiries into a person’s ability to pay before taking such action; and  Whether FSD’s policy and practice of using driver’s license suspension to coerce child support payments is in fact counterproductive. 170. Among the most important, but not the only, common questions of law are:  Whether fundamental principles of due process and equal protection require FSD to take into account a parent’s ability to pay before suspending a license for nonpayment of child support;  Whether suspending a parent’s driver’s license solely because she or he cannot afford to make child support payments is lawful; and  Whether a person is entitled to a meaningful inquiry into his or her present ability to pay child support before Defendants suspend his or her license for nonpayment. III. Typicality — Fed. R. Civ. P. 23(a)(3) 171. Named Plaintiffs’ claims are typical of the other Class Members’ claims, and they have the same interests in this case as all other Class Members. Each Class Member has had or will have his or her driver’s license suspended due to an inability to pay child support. The answer to whether Defendants’ punitive suspension scheme is unconstitutional will determine the claims of Named Plaintiffs and every other Class Member.
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172. If Named Plaintiffs succeed in the claim that FSD’s policies and practices concerning driver’s license suspensions violate their constitutional rights, that ruling will likewise benefit every other Class Member. IV. Adequacy — Fed. R. Civ. P. 23(a)(4)
173. Named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class Members, who each have the same basic constitutional claims. They are members of the Class, and their interests coincide with, and are not antagonistic to, those of the other Class Members.
174. There are no known conflicts of interest among Class Members, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ punitive suspension scheme.
175. Plaintiffs are represented by attorneys from Equal Justice Under Law and St. Francis Community Services, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law.
176. The combined efforts of Class counsel have so far included extensive investigation into Defendants’ suspension scheme, including interviewing attorneys in the region, statewide experts in the functioning of state and local courts, and national experts in constitutional law, law enforcement, judicial procedures, and criminal law.
177. Class counsel have a detailed understanding of local law and practices as they relate to federal constitutional requirements.
178. As a result, counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ scheme and with the relevant state and federal laws. The
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interests of the Class Members will be fairly and adequately protected by Named Plaintiffs and their attorneys. V. Rule 23(b)(2)
179. Class action status is appropriate because Defendants have acted or will act in the same unconstitutional manner with respect to all Class Members. Defendants enforce a punitive suspension scheme: indigent non-custodial parents who are unable to pay child support are punished with license suspension, which only renders them less able to pay.
180. The Class therefore seeks declaratory and injunctive relief to enjoin Defendants from ordering and enforcing these suspensions. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every Class Member, Rule 23(b)(2) certification is appropriate and necessary.
181. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each Class Member from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot order driver’s license suspensions for people who are unable to pay child support would provide relief to every Class Member. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
Claims for Relief Count One:
Violation of Equal Protection and Fundamental Fairness under Bearden v. Georgia (Facial Challenge)
182. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
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183. Missouri’s statutory scheme authorizing Defendants to suspend parents’ driver’s licenses for unpaid child support violates equal protection and substantive due process because it discriminates on the basis of wealth in a way that is fundamentally unfair.
184. The Fourteenth Amendment’s Due Process Clause requires that Missouri maintain a standard of fundamental fairness in its justice system. The suspensions authorized by MO Rev. Stat. § 454.1003.1(1) punish people simply for being too poor to pay, which violates the principles of equal protection and due process because it amounts to discrimination on the basis of wealth.
185. MO Rev. Stat. § 454.1003.1(1) authorizes FSD to order driver’s license suspensions for non-custodial parents who are not making payments on their child support obligations and who owe arrears greater than or equal to three months’ payments or $2,500, whichever is less. The statute does not guarantee or even contemplate any exception for parents whose nonpayment was not willful.
186. MO Rev. Stat. § 454.1003.1(1) is therefore an ostensibly neutral law that nevertheless discriminates on the basis of wealth because it authorizes a penalty for failure to pay without any exception for those who are unable to pay.
Count Two: Violation of Equal Protection and Fundamental Fairness under Bearden v. Georgia
(As-Applied Challenge) 187. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 188. Defendants violate equal protection and substantive due process by suspending parents’ driver licenses for inability to pay child support because they discriminate on the basis of wealth in a way that is fundamentally unfair.
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189. Defendants’ suspensions for inability to pay child support punish parents simply for being too poor to pay, which violates the principles of equal protection and due process because it discriminates on the basis of wealth.
190. FSD orders driver’s license suspensions for failure to pay child support without providing any exception for those whose failure to pay was non-willful. Defendants’ suspension scheme is therefore an ostensibly neutral practice that nevertheless discriminates on the basis of wealth because it imposes a penalty for failure to pay without any exception for those who are unable to pay.
Count Three: Violation of Equal Protection under San Antonio School District v. Rodriguez
(As-Applied Challenge) 191. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 192. Defendants’ wealth-based discrimination is subject to heightened scrutiny because indigent parents are completely unable to pay their arrears, and license suspension completely deprives them of their ability to drive legally. 193. Therefore, Defendants’ suspension scheme must be narrowly tailored to a compelling state interest to pass constitutional muster. 194. Defendants’ punitive suspensions are not narrowly tailored to the collection of child support because driver’s license suspensions make already-struggling parents less able to pay child support, as parents often suffer job loss, income reduction, eviction, and further criminal fines as a result of not being able to drive legally. 195. Defendants’ punitive suspensions are not narrowly tailored to the best interests of children because a parent with a suspended driver’s license is not only less able to earn money to
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pay child support, but also less able to participate in the lives of his or her children. Parents with suspended licenses have a more difficult time picking their children up for visitation, attending school functions, and generally participating in parenting responsibilities. This often leads to further disintegration of already-fragile family relationships, which directly harms children.
196. Because Defendants’ suspension scheme is not narrowly tailored to any compelling government interest, it violates equal protection rights.
Count Four: Violation of Fundamental Right to Travel 197. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 198. Plaintiffs and others similarly situated have a fundamental right to travel. Because Class Members have no viable alternative to driving, Defendants’ suspension of their licenses implicates their rights to interstate and intrastate travel, and this suspension is not narrowly tailored to meet the state objective of child support collection.
Count Five: Violation of Procedural Due Process
(Facial Challenge) 199. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 200. The statutory scheme that authorizes Defendants to suspend driver’s licenses for failure to pay child support violates procedural due process because it does not guarantee an ability-to-pay hearing or provide that notice of such a hearing be provided. 201. Plaintiffs and others similarly situated have protected property and liberty interests in their driver’s licenses and their ability to drive legally.
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202. Parents are constitutionally entitled to a meaningful hearing (that is, an ability-topay hearing) and notice of that hearing before Defendants may suspend their driver’s licenses for failure to pay child support.
203. Missouri’s statutory scheme authorizes the deprivation of this property interest without adequate due process because it does not guarantee an ability-to-pay hearing for all parents facing suspension, and it does not mandate that all such parents be notified of their right to assert ability to pay as a defense.
Count Six: Violation of Procedural Due Process
(As-Applied Challenge) 204. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 205. Defendants violate procedural due process rights under the United States Constitution by suspending licenses without first considering whether nonpayment was willful and without providing adequate notice to parents facing suspension that they may raise inability to pay as a defense against the suspension action. 206. FSD does not inform parents that they may assert inability to pay as a defense against suspension. In fact, the only hearing that FSD provides is one in which parents are specifically prohibited from raising inability to pay or presenting their financial situations in any way. Therefore, Defendants are suspending parents’ driver’s licenses without adequate due process.
Requested Relief WHEREFORE, Plaintiffs request that the Court issue the following relief: a. A declaratory judgment that Defendants’ policies, practices, acts, and/or omissions
as described herein are unlawful and violate Plaintiffs’ and Class Members’ rights under the Constitution and laws of the United States;
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b. An order and judgment preliminarily and permanently enjoining Defendants, their subordinates, agents, employees, representatives, and all others acting or purporting to act in concert with them or on their behalf from issuing or processing orders of driver’s license suspensions for unpaid child support arrears against Plaintiffs and Class Members until such time as the State of Missouri implements a system that complies with the United States Constitution;
c. An order and judgment preliminarily and permanently ordering Defendants to reinstate Plaintiffs’ and Class Members’ driver’s licenses (insofar as they are suspended based on unpaid child support arrears);
d. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems proper. Respectfully submitted, /s/ Rebecca Ramaswamy Rebecca Ramaswamy (5403415NY) Phil Telfeyan (1029157DC) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 rramaswamy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org /s/ Stephanie Lummus Stephanie Lummus (64999MO) Attorney, St. Francis Community Services 100 N. Tucker Blvd., Suite 726 St. Louis, MO 63101 (314) 977-5452 stephanie.lummus@slu.edu
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 Case: 4:19-cv-00398-RLW Doc. #: 49 Filed: 11/08/19 Page: 1 of 2 PageID #: 579

IN THE UNITED STATE DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NATHAN WRIGHT, et al.

)

)

Plaintiffs,

)

)

v.

)

)

FAMILY SUPPORT DIVISION of the )

Missouri Department of Social Services, )

et al.

)

)

Defendants.

)

Case No. 4:19-cv-00398-RLW

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT COME NOW Defendants the Family Support Division of the Missouri Department of

Social Services, Michael Parson in his official capacity as Governor of Missouri, Jennifer Tidball

in her official capacity as Acting Director of the Missouri Department of Social Services, Reginald

McElhannon in his official capacity as Interim Director of the Family Support Division, Kenneth

Zellers in his official capacity as Acting Director of the Missouri Department of Revenue, and

Joseph Plaggenberg in his official capacity as Director of the Motor Vehicle and Driver Licensing

Division of the Missouri Department of Revenue (collectively, “Defendants”), by and through

counsel, and hereby respectfully move this Court to dismiss Plaintiffs’ Amended Complaint

because (1) the Court lacks subject matter jurisdiction to hear Plaintiffs’ claims in their entirety

under the Rooker-Feldman doctrine; (2) the Court must abstain from hearing Plaintiffs’ claims in

their entirety under the Younger Abstention doctrine; (3) Plaintiffs do not state a claim upon which

relief can be granted against Defendant Parson in his official capacity as Governor of Missouri;

and (4) Plaintiffs fail to state a claim upon which relief can be granted in each of Counts I through

IV of the Amended Complaint. Defendants incorporate by reference their memorandum in support

of this motion, which is filed simultaneously herewith.

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Respectfully submitted, ERIC S. SCHMITT Attorney General for the State of Missouri /s/Laura Robb_______ Laura M. Robb, #64117 Robert W. Phillips, #50470 Assistant Attorneys General P.O. Box 861 St. Louis, MO 63188 Telephone: 314-340-7861 Facsimile: 314-340-7029 laura.robb@ago.mo.gov robert.phillips@ago.mo.gov Attorneys for Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was filed electronically with the Clerk of the Court on November 8, 2019, to be served by operation of the Court’s electronic filing system upon all parties.
/s/ Laura M. Robb Laura M. Robb Assistant Attorney General
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 Case: 4:19-cv-00398-RLW Doc. #: 50 Filed: 11/08/19 Page: 1 of 32 PageID #: 581

IN THE UNITED STATE DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NATHAN WRIGHT, et al.

)

)

Plaintiffs,

)

)

v.

)

)

FAMILY SUPPORT DIVISION of the )

Missouri Department of Social Services, )

et al.

)

)

Defendants.

)

Case No. 4:19-cv-00398-RLW

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

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TABLE OF CONTENTS
Title
TABLE OF CONTENTS................................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................................... iv
I. Introduction.....................................................................................................................1 II. Summary of Federal and Missouri Child Support Law ..................................................2 III. Summary of Plaintiffs’ Allegations ................................................................................4 IV. Standard of Review.........................................................................................................6 V. The District Court lacks subject matter jurisdiction to hear Plaintiffs’ claims
in their entirety under the Rooker-Feldman doctrine......................................................7 VI. This Court must abstain from hearing Plaintiffs’ claims in their entirety under
the Younger Abstention doctrine ....................................................................................8 VII. Plaintiffs do not state a claim upon which relief can be granted against Defendant
Parson in his official capacity as Governor of Missouri...............................................10 VIII. Plaintiffs fail to state a claim for violation of either substantive due process
or equal protection ........................................................................................................12 A. Plaintiffs fail to state a claim in Count I upon which relief can be granted
for violation of the Due Process and Equal Protection Clauses under Griffin v. Illinois and Bearden v. Georgia ..............................................................12 B. Plaintiffs fail to state a claim in Count II upon which relief can be granted for an Equal Protection Clause violation under San Antonio School District v. Rodriguez. ..............................................................................................15 C. Plaintiffs fail to state a claim in Count IV upon which relief can be granted for violation of the Equal Protection Clause under James v. Strange ....................16
IX. Plaintiffs fail to state a claim in Count III upon which relief can be granted for violation of the Due Process Clause for a purported fundamental right to travel .........................................................................................................................18
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Case: 4:19-cv-00398-RLW Doc. #: 50 Filed: 11/08/19 Page: 3 of 32 PageID #: 583 X. Plaintiffs fail to state a claim in Count V upon which relief can be granted for violation of the Due Process Clause concerning lack of Procedural due process .................................................................................................20
CONCLUSION ..............................................................................................................................25 CERTIFICATE OF SERVICE ......................................................................................................25
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TABLE OF AUTHORTIES
Cases
281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011)..................................................................................................... 11
Aaron v. Target Corp., 357 F.3d 768 (8th Cir. 2004)....................................................................................................... 9
Air Evac EMS, Inc. v. Texas Dep’t of Ins., 851 F.3d 507 (5th Cir. 2017)..................................................................................................... 11
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................... 6
Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) .................................................................................................................. 18
Bearden v. Georgia, 461 U.S. 660 (1983) .............................................................................................................. 4, 12
Beavers v. Arkansas State Bd. of Dental Exam’r, 151 F.3d 838 (8th Cir. 1998)....................................................................................................... 9
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................... 6
Bell v. Burson, 402 U.S. 535 (1971) .................................................................................................................. 21
Blessing v. Freeston, 520 U.S. 329 (1997) .................................................................................................................... 2
Board of Regents of State College v. Roth, 408 U.S. 564 (1972) ...................................................................................................... 13, 21, 24
Burlison v. Rogers, 311 Fed. Appx. 207 (11th Cir. 2008) ........................................................................................ 22
Calzone v. Hawley, 866 F.3d 866 (8th Cir. 2017)..................................................................................................... 11
Carmack v. Carmack, 947 S.W.2d 842 (Mo. Ct. App. W.D. 1997) ......................................................................... 3, 15
Church v. Missouri, 913 F.3d 736 (8th Cir. 2019)......................................................................................... 10, 11, 12
City of Houston v. FAA, 679 F.2d 1184 (5th Cir.1982).................................................................................................... 20
Clark v. Jeter, 486 U.S. 456 (1988) .................................................................................................................... 9
Conley v. Gibson, 355 U.S. 41 (1957) ...................................................................................................................... 6
Costner v. U.S., 720 F.2d 539 (1983) .................................................................................................................. 14
District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009) .................................................................................................................... 24
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) .................................................................................................................... 7
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Div. of Family Servs. v. Standridge, 676 S.W.2d 513 (Mo. banc 1984) ............................................................................................... 2
Dixon v. Love, 431 U.S. 105 (1977) .................................................................................................................. 21
Dodson v. Univ. of Ark. For Med. Sciences, 601 F.3d 750 (8th Cir. 2010)....................................................................................................... 7
Dycus v. Cross, 869 S.W.2d 745 (Mo. 1994)........................................................................................................ 1
Edwards v. People of State of California, 314 U.S. 160 (1941) .................................................................................................................. 19
Flowers v. Flowers, 622 S.W.2d 414 (Mo. App. S.D. 1981)....................................................................................... 1
Fowler v. Benson, 924 F.3d 247 (6th Cir. 2019)................................................................................... 13, 17, 18, 20
Fuller v. Oregon, 417 U.S. 40 (1974) ........................................................................................................ 16, 17, 18
Griffin v. Illinois, 351 U.S. 12 (1956) ................................................................................................................ 4, 12
Griffith v. Griffith, 190 S.W. 1021 (Mo. App. K.C. 1916) ........................................................................................ 2
Hishon v. King & Spalding, 467 U.S. 69 (1984) ...................................................................................................................... 6
Hoblock v. Albany County Bd. of Elections, 422 F.3d 77 (2d Cir. 2005).......................................................................................................... 7
Hughes v. City of Cedar Rapids, Iowa, 840 F.3d 987 (8th Cir. 2016)............................................................................................... 18, 19
In re Kemp, 894 F.3d 900 (8th Cir. 2018)..................................................................................................... 12
James v. Strange, 407 U.S. 128 (1972) .................................................................................................. 5, 14, 16, 17
Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010)..................................................................................................... 16
Jones v. Helms, 452 U.S. 412 (1983) .................................................................................................................. 14
Kadrams v. Dickinson Public Schools, 487 U.S. 450 (1988) ............................................................................................................ 15, 16
King v. Finney, 2011 WL 4954001 (E.D. Mo. Oct. 18, 2011) ............................................................................. 8
Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982) .................................................................................................................. 24
Lajeunesse v. Missouri Dept. of Social Servs., 350 S.W.3d 842 (Mo. App. W.D. 2011) ................................................................................. 2, 3
Lassiter v. Dept. of Social Services of Durham County, N.C., 452 U.S. 18 (1981) .................................................................................................................... 24
League of United Latin American Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007)..................................................................................................... 18
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Lemonds v. St. Louis County, 222 F.3d 488 (8th Cir. 2000)....................................................................................................... 7
Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697 (9th Cir. 1992)..................................................................................................... 11
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................................ 13, 14
Mackey v. Montrym, 443 U.S. 1 (1979) ...................................................................................................................... 13
Marks v. Marks, 203 SW.3d 729 (Mo. Ct. App. E.D. 2006).................................................................................. 3
Mattes v. ABC Plastics, Inc., 323 F.3d 695 (8th Cir. 2003)....................................................................................................... 6
Matthews v. Eldridge, 424 U.S. 319 (1976) .................................................................................................................. 21
McKinzey v. Missouri Div. of Child Support, Enf’t, 2009 WL 982016 n. 4 (W.D. Mo. Apr. 13, 2009)............................................................. 7
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) .................................................................................................................... 9
Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999)............................................................................................. 19, 20
Monarch Travel Servs., Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552 (9th Cir.1972)...................................................................................................... 20
Moore v. Sims, 442 U.S. 415 (1979) .................................................................................................................... 9
Morgan v. Rabun, 128 F.3d 694 (8th Cir. 1997)..................................................................................................... 20
MSM Farms, Inc. v. Spire, 927 F.2d 330 (8th Cir. 1991)....................................................................................................... 6
Oglala Sioux Tribe v. Fleming, 904 F.3d 603 (8th Cir. 2018)....................................................................................................... 9
Ohio Civil Rights Com’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986) .................................................................................................................... 9
Ortwein v. Schwab, 410 U.S. 656 (1973) ............................................................................................................... 16
Penzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ...................................................................................................................... 10
Proctor v. Title 4-D, 318 F.Supp.3d 337 (D.C.D.C. 2018)........................................................................................... 9
Romer v. Evans, 517 U.S. 620 (1996) .................................................................................................................. 20
Ronwin v. Dunham, 818 F.2d 675 (8th Cir. 1987)..................................................................................................... 10
Saenz v. Roe, 526 U.S. 489 (1999) .................................................................................................................. 19
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) ............................................................................................................ 4, 14, 15
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Schaaf v. Residential Funding Corp., 517 F.3d 544 (8th Cir. 2008)....................................................................................................... 6
Shell Oil Co. v. Noel, 608 F.2d 208 (1st Cir. 1979) ..................................................................................................... 11
Shipley v. Interstate Collections Unit, 2011 WL 6256967 (W.D. Mo. Dec. 14, 2011) ......................................................................... 10
State ex rel. Sikes v. Williams, 121 S.W. 64 (Mo. banc. 1909) .................................................................................................. 12
Thompson v. Ellenbecker, 935 F.Supp. 1037 (D.S.D. 1995)................................................................................................. 6
Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228 (4th Cir. 1985)................................................................................................... 21
U.S. v. Kras, 409 U.S. 434 (1973)................................................................................................................... 16
Washington v. Harper, 494 U.S. 210 (1990)................................................................................................................... 21
Weiss v. Weiss, 392 F.3d 306 (8th Cir. 2004)............................................................................................... 21, 22
Woolridge v. Woolridge, 915 S.W.2d 372 (Mo. Ct. App. W.D. 1996) ............................................................................... 3
Younger v. Harris, 401 U.S. 37 (1971) ...................................................................................................................... 8
Statutes
42 U.S.C. § 666............................................................................................................................... 2 MO. REV. STAT. § 454.1003 ............................................................................................ 1, 2, 11, 22 MO. REV. STAT. § 454.1005 ............................................................................................ 2, 3, 22, 23 MO. REV. STAT. § 454.1010.3 ....................................................................................................... 23 MO. REV. STAT. § 454.1530 ............................................................................................................ 9 MO. REV. STAT. § 454.400.2(13) .............................................................................................. 4, 15 MO. REV. STAT. § 454.501 .............................................................................................................. 4 MO. REV. STAT. §§ 452.340.1, 452.370.1 ....................................................................... 1, 3, 15, 23 MO. REV. STAT. §§ 452.370, 454.496, 454.500 ........................................................................ 4, 23 MO. REV. STAT. §§ 454.500, 454.501 ............................................................................................. 4 MO. REV. STAT.§ 454.370.6 ............................................................................................................ 9
Rules
Mo. R. Civ. P. 88.01 ....................................................................................................................... 3
Other Authorities
Fed. Practice and Procedure § 4469.1, at 97, 101 (2d ed. 2002) .................................................... 7
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COME NOW Defendants, by and through counsel, and hereby submit their Memorandum in Support of their Motion to Dismiss Plaintiffs Nathan Wright, Camese Bedford, Ashley Gildehaus, and Lisa Mancini’s (collectively, “Plaintiffs”) Amended Complaint (the “Amended Complaint”).
I. Introduction Plaintiffs are noncustodial parents who have failed to financially support their children, as
legally required. See, e.g., Flowers v. Flowers, 622 S.W.2d 414, 415 (Mo. App. S.D. 1981). Child support ensures that a parent contributes to the care and wellbeing of their child. Child support is not a fine, fee, or penalty imposed on an obligor. Child support obligations are calculated by accounting for the needs of obligor’s child and the resources of that child’s parents. The State of Missouri has a substantial interest in making sure families are supported and, therefore, Missouri’s Family Support Division (“FSD”) uses a number of tools to work with child support obligors so that financial support gets to those children. The last tool used before a nonpaying obligor is referred to the prosecutor for criminal nonpayment, is sending notice that continued child support nonpayment could suspend the obligor’s driver’s license and, if that obligor continues nonpayment, eventually suspending that driver’s license. See MO. REV. STAT. § 454.1003. Plaintiffs argue that suspending driver’s licenses for child support nonpayment is unconstitutional on the sole basis that an obligor cannot argue that he is unable to pay due to indigence at the final pre-suspension hearing. Plaintiffs ignore that, under Missouri law, child support obligations in the first instance are determined by looking at both parents’ ability to financially support their child and that child support obligors can seek modification of the payment amount when a circumstance change occurs. MO. REV. STAT. §§ 452.340.1, 452.370.1. As such, Plaintiffs fail to establish any constitutional violations. A parent “has no fundamental right to avoid [the] duty” to support their child. Dycus v. Cross, 869 S.W.2d 745, 750 (Mo. 1994). Despite this, Plaintiffs ask this Court to
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interfere with FSD’s ability to seek the court-imposed obligation to pay support due to their child solely because they cannot again argue ability-to-pay at the final pre-suspension hearing.
II. Summary of Federal and Missouri Child Support Law Parents have a common law duty to support their children. See, e.g., State ex re. Div. of
Family Servs. v. Standridge, 676 S.W.2d 513, 515 (Mo. banc 1984); Griffith v. Griffith, 190 S.W. 1021, 1022 (Mo. App. K.C. 1916). The duty to support one’s children is codified in federal guidelines for state family programs funding and by child support laws in every state. Blessing v. Freeston, 520 U.S. 329, 333-335 (1997). The federal guidelines dictate reasonable tools for states to enforce and collect child support obligations, including authority to withhold or suspend driver’s licenses. 42 U.S.C. § 666.
Missouri has codified its own child support laws and regulations to comply with these federal guidelines. Lajeunesse v. Missouri Dept. of Social Servs., 350 S.W.3d 842, 846 (Mo. App. W.D. 2011). If a child support obligor fails to make child support payments such that the obligor owes $2,500.00, or three months of payments, whichever is less, the obligor may face driver’s license suspension. MO. REV. STAT. § 454.1003. If the obligor fails to request child support payment modification or to enter into a payment plan, the obligor may still request a hearing “[t]o show cause why suspension of a license may not be appropriate”. MO. REV. STAT. § 454.1005. At this hearing, the judge or an administrative hearing officer is restricted to determining only:
(1) The identity of the obligor; (2) Whether the arrearage is in an amount greater than or equal to three months of
support payments or two thousand five hundred dollars, whichever is less, by the date of service of a notice of intent to suspend; and (3) Whether the obligor has entered a payment plan. If the action involves a failure to comply with a subpoena or order, the only issues that may be determined are the identity of the obligor and whether the obligor has complied with the subpoena or order.
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MO. REV. STAT. § 454.1005.4. Plaintiffs’ sole contentions relate to this final step prior to an obligor’s driver’s license suspension. Plaintiffs argue that because an obligor cannot raise ability to pay at this hearing, their equal protection rights, fundamental right to travel, and due process rights are violated. See the Amended Complaint (“Am. Compl.”), ¶ 236.
However, ability to pay is considered in setting and enforcing child support from the beginning. MO. REV. STAT. § 452.340. Missouri law lists “the financial resources and needs of the parents,” as the second factor to be considered in setting the amount of child support for a child. Notably, the first consideration is listed as “the financial needs and resources of the child.” Id. The courts and FSD determine the right amount of child support to be ordered using a two-step process. Marks v. Marks, 203 SW.3d 729, 734 (Mo. Ct. App. E.D. 2006), citing Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo. Ct. App. W.D. 1996). First, the adjudicator must determine the presumed child support amount using Form 14, a formula adopted by the Supreme Court of Missouri for child support determination. Form 14 requires that the monthly gross income of both the support receiving and support paying parents be calculated and considered before a child support amount is awarded. Carmack v. Carmack, 947 S.W.2d 842, 845 (Mo. Ct. App. W.D. 1997). Second, the adjudicator must determine whether the presumed child support amount, as calculated by the Form 14, is just and appropriate. Mo. R. Civ. P. 88.01; Marks, 203 SW.3d at 734. If the adjudicator deems that the presumed child support amount inappropriate, it may order the non-custodial parent to pay a higher or lower amount than the Form 14 calculation, or even zero child support. Marks, 203 S.W.3d at 734. When an adjudicator orders a support amount outside the presumed amount, the child support order must address the relevant factors listed in Missouri Revised Statute section 452.340, including financial needs and resources of the parents. Cmt. G, Missouri Form 14.
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Because child support orders are ongoing and family circumstances change, both child support judgments entered by a court as well as FSD administrative orders are subject to modification. See MO. REV. STAT. §§ 452.370, 454.496, 454.500. To change the child support amount due when it was established under an FSD administrative child support order, a parent may request either that the child support order be reviewed by FSD or that a court enter its own child support order. MO. REV. STAT. §§ 454.500, 454.501. When a court obtains jurisdiction to establish a child support order, its order supersedes the prior administrative child support order. MO. REV. STAT. § 454.501.
The general standard for child support order modification is whether the parent shows a change in circumstances so substantial and continuing as to make the previous child support order unreasonable. MO. REV. STAT. §§ 452.370, 454.500.3. A twenty percent change in the presumed child support amount is a prima facie showing of a substantial and continuing change in circumstances. MO. REV. STAT. § 452.370. A parent can request FSD review their child support order, whether entered by a court or by FSD, for modification once every three years. MO. REV. STAT. § 454.400.2(13). FSD may review a child support order earlier within that three-year period in specific circumstances, such as when a parent experiences a more than 50% increase or decrease in income. 13 C.S.R. 30-5.020. If a parent asks a court to change its judicial child support order pro se, the Missouri Supreme Court has adopted specific forms for self-represented litigants to ask a court to modify child support orders; these fill-in-the-blank forms free of charge, with instructions and information. See https://www.courts.mo.gov/page.jsp?id=638.
III. Summary of Plaintiffs’ Allegations Plaintiffs allege that Missouri’s system for suspending driver’s license for failure to pay
child support violates (1) equal protection and fundamental fairness under Griffin v. Illinois, 351 U.S. 12 (1956) and Bearden v. Georgia, 461 U.S. 660 (1983); (2) equal protection under San
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Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973); (3) the fundamental right to travel; (4) equal protection under James v. Strange, 407 U.S. 128 (1972); and (5) procedural due process.
Plaintiffs owe more than $2,500.00 in child support and who have, as a result, had their driver’s licenses suspended. See Am. Compl., ¶¶15-18. Plaintiffs also allege that they are indigent and unable to pay the amounts due. Id. However, Plaintiffs admit that they have been able to use procedures provided to modify their child support obligations. Plaintiff Wright admits that he was able to successfully apply for a modification that adjusted downward his child support obligation in 2006. See Id. ¶ 30. Plaintiff Bedford admits that his child support obligation was reduced in January 2019. Id. ¶ 50. Plaintiff Gildehaus admits that he originally was ordered to pay $306/month in child support, but he later agreed in mediation to pay an increased amount. See Id. ¶¶ 66, 68, 70. Plaintiff Gildehaus also admits that he received five stays on his driver’s license suspension, presumably by entering into a payment plan with FSD or showing he was looking for work, and has requested a sixth stay. Id. ¶ 77. Plaintiffs fail to state why they have not contacted FSD to enter into a payment plan or opted to seek child support modification.
Plaintiffs admit that they presented their ability to pay information and that a child support obligation was imposed only after a hearing in front of the family court wherein their ability to pay was considered. See Am. Compl., ¶¶ 30, 50, 66, 70, 97-98. While Plaintiffs assert that they are still unable to pay the amounts ordered by the family court, the fact that they are unhappy with the outcome does not negate that they presented, and a court considered, ability to pay information. Further, Plaintiffs have many opportunities to raise their ability to pay and seek child support modifications, both before the court and before FSD.
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IV. Standards of Review Because this case does not involve a suspect classification or fundamental right, the statute
is presumed constitutional. MSM Farms, Inc. v. Spire, 927 F.2d 330, 332 (8th Cir. 1991). See also Thompson v. Ellenbecker, 935 F.Supp. 1037, 1040 (D.S.D. 1995) (burden is on plaintiffs to prove statute using drivers’ license law to collect delinquent child support is unconstitutional). For the purposes of this Motion to Dismiss, the Court assumes as true Plaintiffs’ allegations in their Amended Complaint. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Dismissal is appropriate because, even assuming Plaintiffs’ allegations are true, Plaintiffs cannot prove a set of facts entitling them to relief, and the Court lacks subject matter jurisdiction to grant relief.
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ' state a claim to relief that is plausible on its face. "' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiffs "must include sufficient factual information to provide the 'grounds' on which the claim rests, and to raise a right to relief above a speculative level." Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires plaintiffs to plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is limited to a facial attack on the pleadings. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003). The applicable standard is the same as a motion to dismiss under Rule 12(b)(6) in that the Amended Complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
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V. The District Court lacks subject matter jurisdiction to hear Plaintiffs’ claims in their entirety under the Rooker-Feldman doctrine.
Plaintiffs’ claims are barred by the Rooker-Feldman doctrine. See, e.g., McKinzey v. Missouri Div. of Child Support Enf’t, 2009 WL 982016, *3 n. 4 (W.D. Mo. Apr. 13, 2009) (dictum). This doctrine prohibits federal courts, other than the U.S. Supreme Court, from reviewing final state court judgments. Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th Cir. 2000). The Rooker-Feldman doctrine bars “cases … brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced.” Dodson v. Univ. of Ark. For Med. Sciences, 601 F.3d 750, 754 (8th Cir. 2010) (quoting Fed. Practice and Procedure § 4469.1, at 97, 101 (2d ed. 2002)). Even claims “inextricably intertwined with state court judgments are outside the scope of federal district court jurisdiction.” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983).
Plaintiffs are not directly appealing a state court judgment, and their Amended Complaint studiously avoids mentioning state court action. However, Plaintiffs cannot avoid application of the Rooker-Feldman doctrine “simply by clever pleading – by alleging that actions taken pursuant to a court order violate [their] rights without ever challenging the order itself.” Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005). Named Plaintiffs’ obligations to pay child support are pursuant to child support orders, issued and monitored by a Missouri court. See Bedford v. Bedford, Case No. 16SL-DR02769-01 (filed June 6, 2018); Wright v. Wright, Case No. 2105FC11848-01 (filed Mar. 28. 2011); Gildehaus v. Gildehaus, Case No.10AB-DR00600 (filed Nov. 9, 2010); Grote v. Grote, Case No. 2102FC-04413 (filed May 9, 2001). In these cases, following the statutes, a State Circuit Court examined Plaintiffs’ ability to pay child support, including their indigence claims, and determined the child support amount each Plaintiff was required to pay.
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Plaintiffs’ affidavits, attached to the Amended Complaint, contain a litany of complaints about the Courts and Judges. For example, Plaintiff Wright complains that the Court ordered him to pay $900 in monthly support for his daughter, later reduced to $509/month, but the process was “expensive, slow, and discouraging.” See Doc. 22-1, ¶ 3. Plaintiff Bedford complains that the Court ordered him to pay child support, but admits that he chose not to attend his hearing. See Doc. 22-3, ¶ 5. He also admits that he ended up back in Court, with a public defender, after he was charged with criminal non-support, and complains that the Court charged more fees. Id. ¶ 9. Similarly, Plaintiff Gildehaus complains of his Court ordered child support and then complains about the Court entering the child support amount that he admits he agreed to pay in his mediation agreement. See Doc. 22-5, ¶¶ 4, 5, 8. Plaintiff Mancini alleges the Court mistreated her when it ordered her to pay child support and the Judge mistreated her by allegedly “refus[ing] to allow [her] to explain the circumstances.” See Doc. 22-7, ¶ 10.
Each Plaintiff admits that their child support obligation was Court ordered. Plaintiffs now take issue with their driver’s licenses being suspended for their failure to pay that child support. Driver’s license suspension is a consequence of their failure to comply with a state court judgment. This suit is a de facto attack on the state court judgment and, therefore, this Court lacks subject matter jurisdiction to hear Plaintiffs’ claims under the Rooker-Feldman doctrine.
VI. This Court must abstain from hearing Plaintiffs’ claims in their entirety under the Younger Abstention doctrine.
Because Plaintiffs’ challenge on-going state child support proceedings, their claims should be dismissed under the Younger abstention doctrine. King v. Finney, 2011 WL 4954001, *11 (E.D. Mo. Oct. 18, 2011). Under the doctrine the Supreme Court outlined in Younger v. Harris, 401 U.S. 37, 43-45 (1971), a district court should abstain from hearing a matter when there is “(1) the existence of an ongoing state judicial proceeding, (2) which implicates important state interests,
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and (3) which provides an adequate opportunity to raise constitutional challenges.” Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). This doctrine “reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff.” Oglala Sioux Tribe v. Fleming, 904 F.3d 603, 610 (8th Cir. 2018) (quoting Moore v. Sims, 442 U.S. 415, 423 (1979)). Younger abstention “does not arise from lack of jurisdiction in the District Court, but from strong policies counseling against the exercise of such jurisdiction where particular kinds of state proceedings have already been commenced.” Ohio Civil Rights Com’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 (1986).
The first Younger abstention factor is satisfied because there are on-going state judicial proceedings. The named Plaintiffs are all subject to an ongoing child support order, issued and monitored by the Circuit Court of St. Louis County, Missouri. See Bedford v. Bedford, Case No. 16SL-DR02769-01 (filed June 6, 2018); Wright v. Wright, Case No. 2105FC-11848-01 (filed Mar. 28. 2011); Gildehaus v. Gildehaus, Case No.10AB-DR00600 (filed Nov. 9, 2010); Grote v. Grote, Case No. 2102FC-04413 (filed May 9, 2001). Under state law, the court has continuing jurisdiction to enforce the child support order. MO. REV. STAT. § 454.1530. Their cases are open and will not terminate until the child support order is fully discharged. MO. REV. STAT.§ 454.370.6. See also Proctor v. Title 4-D, 318 F.Supp.3d 337, 346 (D.C.D.C. 2018).
The second Younger abstention factor is also satisfied because states have a recognized interest in ordering and enforcing child support obligations. Clark v. Jeter, 486 U.S. 456, 462 (1988). Younger abstention allows this Court to abstain from a case “in order to preserve traditional principles of equity, comity and federalism.” Beavers v. Arkansas State Bd. of Dental Exam’r, 151 F.3d 838, 840 (8th Cir. 1998).
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Third, Plaintiffs have not, and cannot, argue that they could not have raised their constitutional claims in the state courts. Plaintiffs had, and continue to have, the opportunity to raise any constitutional claims in front of the State Circuit Court. Shipley v. Interstate Collections Unit, 2011 WL 6256967, *3 (W.D. Mo. Dec. 14, 2011). Plaintiffs can always seek state court review of their child support obligation, including review of any argument that a hardship has impeded their ability to pay or any stay of their driver’s licenses for failure to meet that obligation, and can raise any constitutional claims there. Ronwin v. Dunham, 818 F.2d 675, 678 (8th Cir. 1987) (providing that Younger abstention was “fully applicable” to state administrative proceedings regarding the suspension of appellant’s driver’s license).
In addition, Plaintiffs’ constitutional challenges to state statutes and state agency policies militate in favor of abstention. Supreme Court precedent provides “that federal courts should avoid unwarranted determination of federal constitutional questions.” Ronwin, 818 F.2d at 678 (citing Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 11-12 (1987)). Plaintiffs had a full and fair opportunity to raise any constitutional concerns they had to the amount of their child support obligation and their ability to pay in their state court proceedings. That is all due process requires.
VII. Plaintiffs do not state a claim upon which relief can be granted against Defendant Parson in his official capacity as Governor of Missouri.
Because the State is entitled to sovereign immunity from all suits in law or equity, subject to certain exceptions not present here, the Plaintiffs name various state officials as partydefendants under the Ex parte Young doctrine in their Amended Complaint. See Church v. Missouri, 913 F.3d 736, 745-47 (8th Cir. 2019) (State does not waive sovereign immunity for prospective injunctive relief, leaving only the avenue of Ex parte Young doctrine); see Am. Compl., ¶¶ 20-24. Plaintiffs assert that the Governor is a proper defendant because he is the “head of the executive branch of the Missouri state government and is responsible for enforcing state
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law,” including the state law authorizing FSD to suspend driver’s licenses for parents failing to pay child support. See Am. Compl., ¶ 20. Plaintiffs also assert the Governor is a proper defendant because he oversees Missouri’s executive departments, including the Department of Social Services and the Department of Revenue. Id.
To determine whether the Ex parte Young doctrine permits suit against a particular state official, a court conducts a “straightforward inquiry into whether the complaint alleges (1) an ongoing violation of federal law and (2) seeks relief properly characterized as prospective.” Church, 913 F.3d at 747 (quoting 281 Care Committee v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011)). The first element is determinative here, because a state official must have “some connection to the enforcement of the challenged laws.” Church, 913 F.3d at 748 (quoting Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017)). The connection does not need to be primary authority nor does the state official need to have the “full power to redress a plaintiff’s injury.” Church, 913 F.3d at 748 (quoting 281 Care, 638 F.3d at 632-33). Plaintiffs argue the Governor’s responsibility for enforcing state law and role as head of the executive branch constitute the “connection” necessary under Ex parte Young. See Am. Compl., ¶ 20.
However, the Governor’s general authority for enforcing the law is only an adequate “connection” if that authority provides the Governor enforcement abilities. Church, 913 F.3d at 749. A broad duty to uphold and enforce state law is not sufficient to make a governor a partydefendant. Id.; accord Air Evac EMS, Inc. v. Texas Dep’t of Ins., 851 F.3d 507, 517 (5th Cir. 2017); Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979). The Governor possesses no direct enforcement powers regarding driver’s licenses suspension under Missouri Revised Statute section 454.1003.1. Nor does the Governor’s role as head of the executive branch or his related appointment power for
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directors of various state agencies, constitute a “connection” under Ex parte Young. See Church, 913 F.3d at 750. Appointing state officials is an insufficient administrative act. Id. (citing State ex rel. Sikes v. Williams, 121 S.W. 64, 65 (Mo. banc. 1909)) (confirmations by Missouri Senate of Governor’s appointments are administrative not legislative acts). For these reasons, sovereign immunity prohibits Plaintiffs’ claims against the Governor, and they should be dismissed.
VIII. Plaintiffs fail to state a claim for violation of either substantive due process or equal protection.
Plaintiffs allege three counts involving the Equal Protection Clause. In order to state a prima facie case for violation of the Equal Protection Clause, Plaintiffs must demonstrate that they have been treated differently from others with whom they are similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. In re Kemp, 894 F.3d 900, 909 (8th Cir. 2018). Plaintiffs argue that they have been treated differently than wealthy people. As demonstrated below, under each of Plaintiffs’ arguments, the Missouri law suspending driver’s licenses for failure to pay child support is subject to rational basis review and, because suspension of driver’s licenses bears a rational relationship to the legitimate state interest in collecting child support, the law survives scrutiny.
A. Plaintiffs fail to state a claim in Count I upon which relief can be granted for violation of the Due Process and Equal Protection Clauses under Griffin v. Illinois and Bearden v. Georgia.
At Count I, Plaintiffs allege violations of both the Fourteenth Amendment’s Due Process Clause (substantive due process) and the Equal Protection Clause, claiming that the Missouri statute discriminates on the basis of wealth in a “fundamentally unfair” way against indigent parents who are unable to pay their child support obligations. See Am. Compl., ¶¶ 188, 257-261. Plaintiffs’ argument relies solely on a line of Supreme Court cases involving protection of a liberty interest. Bearden v. Georgia, 461 U.S. 660 (1983); Griffin v. Illinois, 351 U.S. 12 (1956). The
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analysis the Griffin line of cases is inapposite to the nature of the statute and interests here, and Plaintiffs fail to state a claim upon which relief can be granted under the Due Process Clause and Equal Protection Clause relating to “fundamental fairness.”
A person’s interest in their driver’s license is, at best, a property interest, not a liberty interest that is subject to much greater protection. See Mackey v. Montrym, 443 U.S. 1, 11 (1979) (driver’s license is a protectable property interest); M.L.B. v. S.L.J., 519 U.S. 102, 124 (1996) (the only two exceptions to rational basis review under the Griffin line of cases are access to political processes as voters and criminal or quasi-criminal judicial processes). The Constitution does not create property interests, which are defined and limited by the existing rules and supporting law. Board of Regents of State College v. Roth, 408 U.S. 564, 577 (1972) (professor did not have protectable property interest in reemployment under contract terms; Fowler v. Benson, 924 F.3d 247, 256-57 (6th Cir. 2019) (property interest in state-issued driver’s license does not create specific interest to be exempt from paying debt). Plaintiffs do not hold an unqualified property right in their driver’s licenses, rather this right is defined and limited by the pre-existing Missouri law requiring payment of child support obligations to avoid possible suspension. See Fowler, 924 F.3d at 256-57.
To demonstrate that Missouri’s statute violates substantive due process concerning a property interest, Plaintiffs must show that suspension under the statute is a “truly irrational action” because the “theory of substantive due process … is properly reserved for truly egregious and extraordinary cases” and those “offensive to human dignity.” Azam v. City of Columbia Hts.¸865 F.3d 980, 986 (8th Cir. 2017) (government fees and enforcement of municipal code did not violate property rights of landowner under substantive due process). Because wealth is not a suspect class, Plaintiffs’ challenge under the Equal Protection Clause is subject to rational basis review.
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Rodriguez, 411 U.S. at 29 (“Wealth discrimination alone does not provide an adequate basis for invoking strict scrutiny.”); M.L.B., 519 U.S. at 123-24 (the general rule is review for rationality of statute). Therefore, whether reviewed for “fundamental fairness” under Griffin and Bearden through M.L.B., under substantive due process or under equal protection, rational basis review applies. Rodriguez, 411 U.S. at 29 (“Wealth discrimination alone does not provide an adequate basis for invoking strict scrutiny.”).
A law passes the rational basis test if it is rationally related to a legitimate state purpose. See, e.g., Costner v. U.S., 720 F.2d 539, 541 (1983). Missouri has a legitimate state purpose in collecting child support from parents on behalf of their children. See Jones v. Helms, 452 U.S. 412, 423 (1983) (“There can be no question about the legitimacy of the purpose to cause parents to support their children.”). Suspension of an obligor’s driver’s license for failure to pay child support is rationally related to this legitimate state purpose because it is designed to aid in collection of child support. Plaintiffs argue that suspension of driver’s licenses is irrational because it makes it harder for an obligor to obtain and hold a job, thereby making it harder to pay child support. However, even if that were true, it is irrelevant to the question of whether the program is unconstitutional. James v. Strange, 407 U.S. 128, 133-34 (1972) (“Misguided laws may nonetheless be constitutional…. Our task, however, is not to weigh this statute’s effectiveness but its constitutionality.”). As such, suspension of driver’s licenses for failure to pay child support passes the rational basis test and Plaintiffs are unlikely to succeed on the merits of their claim in Count I.
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B. Plaintiffs fail to state a claim in Count II upon which relief can be granted for an Equal Protection Clause violation under San Antonio School District v. Rodriguez.
In Count II, Plaintiffs allege violation of the Equal Protection Clause on the grounds that the Missouri statute discriminates on the basis of wealth against indigent parents who are unable to pay their child support obligations. See Am. Compl., ¶¶ 201-206, 262-269. Wealth or poverty is not a protected class, and therefore challenges under the Equal Protection Clause for distinctions made on the basis of wealth are subject to rational basis review and not to any form of heightened scrutiny. Rodriguez, 411 U.S. at 1288 (upholding state educational funding system with unequalfunded school districts under an Equal Protection Clause challenge because it bore a rational relationship to a legitimate state purpose); Kadrams v. Dickinson Public Schools, 487 U.S. 450, 461-62 (1988) (statute allowing school districts to charge user fee for school bus transportation that disadvantaged poor students survives rational basis review under Equal Protection Clause).
First, child support obligations are calculated either by the courts or FSD by a formula that incorporates an obligor’s ability to pay as well as the child’s needs. See MO. REV. STAT. § 452.340; Carmack v. Carmack, 947 S.W.2d 842, 845 (Mo. Ct. App. W.D. 1997). Second, child support obligations are not comparable to traffic fines, court costs, or other government fees and fines, which are set by arbitrary scale and not according to a defendant’s ability to pay; therefore, no “wealth-based discrimination” exists whereby a wealthy person is able to pay a fixed fine or cost that a poor person cannot. Third, child support obligors have the ability to request modification of their obligations, or show hardship to a court for relief from the suspension. MO. REV. STAT. § 454.400.2(13); 13 C.S.R. 40-106.010.
At stake in Kadrams was the ability of children to obtain an education because poor students were unable to pay the bus fee and had unreliable transportation from their impoverished
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families. 487 U.S. at 454-55. Nevertheless, the Court found that the state “does not maintain a legal or practical monopoly on the means of transporting children to school” and that the state’s decision to allow local school district to charge a user fee, as a method for encouraging consolidation among districts and conserve funding, was constitutionally permissible despite its impact on those in poverty. Id. at 462-63. Likewise, the Court in Ortwein v. Schwab denied an equal protection challenge by welfare recipients, a group who is by definition below the poverty line, to the filing fee for an appeal of denial or reduction in their benefits. 410 U.S. 656, 661 (1973) (applying rational basis review). The Court based its decision in part on its holding in U.S. v. Kras, where the Court upheld under the Equal Protection Clause the requirement of filing fees payment for filing a bankruptcy petition, which presented poverty issues and implications. 409 U.S. 434, 446 (1973).
As discussed above, suspension of driver’s licenses for failure to pay child support passes the rational basis test and Plaintiffs have failed to state a claim for which relief can be granted in Count II.
C. Plaintiffs fail to state a claim in Count IV upon which relief can be granted for violation of the Equal Protection Clause under James v. Strange.
In Count IV, Plaintiffs allege violation of the Equal Protection Clause due to the use of unique, “unduly harsh,” and discriminatory collection methods by Defendants relative to the terms and methods of collection methods available to private creditors. See Am. Compl. ¶¶ 218-220; James v. Strange, 407 U.S. 128 (1972); see also Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010). Because Plaintiffs do not present a suspect class subject to strict or even heightened scrutiny, the basis for review is whether the statue is rationally related to a legitimate government interest. Strange, 407 U.S. at 140-41 (applying rational basis review to Kansas recoupment statute); Fuller v. Oregon, 417 U.S. 40, 49 (1974) (rational basis review of Oregon recoupment
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statute); Fowler v. Benson, 924 F.3d 247, 263 (6th Cir. 2019) (holding challenge to driver’s license suspensions under Strange subject to rational basis review).
The Strange Court found that a Kansas statute violated equal protection because it “eliminat[ed]… exemptions normally available to judgment debtors.” Fuller, 417 U.S. at 47. The Court explained that the Equal Protection Clause was violated because there must be “some rationality” in discriminating between the two classes of debtors, and that Kansas had imposed “discriminatory conditions of repayment” not imposed on other judgment debtors without any such basis. Strange, 407 U.S. at 140.
The Fuller Court explained its decision in Strange by stating that therein the Court “found that the elimination of the exemptions normally available to judgment debtors embodied elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.” Fuller, 417 U.S. at 47. The Oregon statute did not eliminate any protections otherwise available at law for its state-obligated debtors, and for that reason passed the Court’s rational basis review. Id. at 49-50.
The Missouri statute does not eliminate any protections for child support obligors that are otherwise available to ordinary judgment debtors, like was present in Strange. As the Court stated in Strange, “[w]e 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 be identical.” Strange, 407 U.S. at 138. Strange is also distinguishable from the facts in this case because the State is not seeking to reimburse its own coffers; rather, it seeks to collect support due to obligor’s child. Further, the State is “uniquely empowered to grant, suspend, or reinstate driver’s licenses” and the Supreme Court “does not require anything like exact parity between the State and private creditors in this
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regard.” Fowler, 924 F.3d at 263 (“It would be passing strange indeed to interpret Strange as putting Michigan to the choice of either giving up its right to suspend the licenses of those with unpaid court debt or empowering private creditors to suspend the driver’s licenses of those indebted to them.”).
In addition, laws challenged under Strange are subject to rational basis review. Fuller, 417 U.S. at 49-50. As stated above, suspension of driver’s licenses for failure to pay child support passes the rational basis test and Plaintiffs have failed to state a claim for which relief can be granted in Count IV.
IX. Plaintiffs fail to state a claim in Count III upon which relief can be granted for violation of the Due Process Clause for a purported fundamental right to travel.
A state law only implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification serving to penalize the exercise of the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986). Plaintiffs argue that the statute is an “actual barrier to intrastate movement.” See Am. Compl., ¶ 210. They also argue that because the statute “implicates a fundamental liberty interest,” it must be “narrowly tailored to achieve compelling state objectives.” Id., ¶ 215. This conclusion does not follow because Plaintiffs cannot establish that driver’s license suspension burdens the fundamental right to travel and, therefore, the statute is only subject to rational basis scrutiny. See, e.g., League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 530 (6th Cir. 2007).
The fundamental right to travel has three components: “1) the right of a citizen of one state to enter and leave another state, 2) the right to be a welcome visitor, not an unfriendly alien, when temporarily present in another state, and 3) for those travelers who become permanent residents, the right to be treated like other citizens of that state.” Hughes v. City of Cedar Rapids, Iowa, 840
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F.3d 987, 995 (8th Cir. 2016) (citing Saenz v. Roe, 526 U.S. 489, 500-01 (1999)). Plaintiffs have not alleged and cannot establish that any of the three components have been impinged upon.
The first component protects a person’s right to go from one state to another. Hughes, 840 F.3d at 995. A statute that does not burden entry into or exit from a state does not directly impair the right to free interstate movement and, therefore, does not violate the fundamental right to travel. Saenz, 526 U.S. at 500. The fundamental right to travel does not contemplate a fundamental right to drive a motor vehicle. Miller v. Reed, 176 F.3d 1202, 1205-06 (9th Cir. 1999). A burden on a single mode of transportation does not implicate the right to interstate travel. Id. Plaintiffs have not argued and cannot establish that Missouri law permitting driver’s license suspension for failure to pay child support places any burden on the obligor’s right to go from one state to another.
Similarly, Plaintiffs have not alleged and cannot establish either the second or third components. The Missouri child support laws have no relationship to Plaintiffs’ right to be a “welcome visitor” in Missouri or any other state. Nor do the child support laws treat travelers who become permanent residents different than other citizens of that state. Missouri law simply treats Plaintiffs like any other person without a driver’s license in the state of Missouri.
Indeed, Plaintiffs concede that there is no fundamental right to drive. See Am. Compl. at ¶ 207. Further, they misplace their reliance in a 1941 Supreme Court concurring opinion for the proposition that “[a]llowing states to limit the movement of those who are indigent ‘would also introduce a caste system utterly incompatible with the spirit of our system of government.’” Id. (quoting Edwards v. People of State of California, 314 U.S. 160, 181 (1941) (Douglas, J., concurring)). The statute at issue in Edwards explicitly stated that it was a misdemeanor to bring or assist in bringing an indigent non-resident into the state of California. Edwards, 314 U.S. at 166. That statute is in no way analogous to a statute that suspends an obligor’s driver’s license for
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failure to pay child support. A burden on a single mode of transportation does not implicate the right to interstate travel. Miller, 176 F.3d at 1205; see Monarch Travel Servs., Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir.1972) (“A rich man can choose to drive a limousine; a poor man may have to walk. The poor man's lack of choice in his mode of travel may be unfortunate, but it is not unconstitutional.”); City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir.1982) (“At most, [the air carrier plaintiffs'] argument reduces to the feeble claim that passengers have a constitutional right to the most convenient form of travel. That notion, as any experienced traveler can attest, finds no support whatsoever in [the Supreme Court's right of interstate travel jurisprudence] or in the airlines' own schedules.”).
Because there is no fundamental right to drive, Plaintiffs’ driver’s licenses suspension did not unconstitutionally impede their right to interstate travel. As such, the appropriate level of scrutiny is rational basis scrutiny wherein the statute will be upheld so long as it bears a rational relation to some legitimate end. See, e.g., Romer v. Evans, 517 U.S. 620, 631 (1996). As discussed above, the statutory scheme that suspends a driver’s license in order to incentivize child support payment bears a rational relation to the significant state interest of collecting child support. See Section IX, supra. See also Fowler v. Benson, 924 F.3d 247, 263 (6th Cir. 2019) (finding that Michigan’s statutory scheme of suspending driver’s licenses of people with unpaid court debt is rationally related to the legitimate government interest in “promoting compliance with court orders and in collecting traffic debt”). Therefore, this Court should dismiss Plaintiffs’ claim that the policy of suspending driver’s licenses for failure to pay child support violates a right to travel.
X. Plaintiffs fail to state a claim in Count V upon which relief can be granted for violation of the Due Process Clause concerning lack of procedural due process. Procedural due process involves determination “whether the State’s nonjudicial
mechanisms used to determine the facts in a particular case are sufficient.” Morgan v. Rabun, 128
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F.3d 694, 698 (8th Cir. 1997) (quoting Washington v. Harper, 494 U.S. 210, 220 (1990)). Plaintiffs argue that the driver’s license suspension statute is unconstitutional as applied to Plaintiffs and the purported class because “it does not guarantee an ability-to-pay hearing or provide notice of such a hearing.” See Am. Compl., p. 40.
Plaintiffs are correct that driver’s licenses cannot be suspended without the procedural due process required by the Fourteenth Amendment. Bell v. Burson, 402 U.S. 535, 539 (1971). However, the property interest in a driver’s license is “not so great as to require us to depart from the ordinary principle … that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Dixon v. Love, 431 U.S. 105, 113 (1977) (internal quotes omitted).1
In order to determine if there has been a violation of procedural due process, a court must evaluate (1) the private interest affected, (2) the risk of erroneous deprivation of that interest through the procedures used, and (3) the governmental interest at stake. Matthews v. Eldridge, 424 U.S. 319, 335 (1976). Plaintiffs have a property interest in a valid driver’s license, but such interest is subject to boundaries established by state law. Roth, 408 U.S. at 577. Therefore, the first prong weighs only slightly in favor of Plaintiffs. It is also indisputable that the State has a substantial interest in collection of child support payments. Weiss v. Weiss, 392 F.3d 306, 315 (8th Cir. 2004). Therefore, the third prong weighs heavily in favor of Defendants.
Further, Plaintiffs have not established the second prong: a risk of erroneous driver’s license deprivation through the procedures used. There are procedural safeguards in place to insure
1 See also Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228 (4th Cir. 1985): We do not disparage the importance of a driver’s license … . We merely note that suspension is not an uncommon occurrence, that alternative arrangements are usually possible, and that the Court has expressly held that the interest is not so great as to require departure from the principle that an evidentiary hearing is not ordinarily required prior to adverse administrative action. 21

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that there is no erroneous deprivation of a driver’s license. Initially, when a child support obligor falls behind on his or her payments such that state law allows suspension of child support, FSD policy is that a child support specialist must review the case before notice of a pending suspension is sent. If the child support specialist concludes that suspension is appropriate, notice is sent to the obligor by certified mail. MO. REV. STAT. § 454.1003.3. If the certified mail receipt is not returned signed, the notice is sent by process server. MO. REV. STAT. § 454.1003.3. If the process server is not able to personally serve the notice, the license is not suspended. Id. The notice of intent to suspend notifies obligors that they may request a hearing if they think their license is being wrongfully suspended. MO. REV. STAT. § 454.1003. Plaintiffs focus exclusively on this hearing, at which the administrative hearing officer or court confirms (1) the identity of the obligor; (2) whether the arrearage is greater than or equal to three months of payments or $2,500.00 or less; and (3) whether the obligor has entered into a payment plan. MO. REV. STAT. § 454.1005.4. This hearing insures no erroneous deprivation. Procedural due process is not violated when an individual is given notice and an opportunity to be heard before suspension. Burlison v. Rogers, 311 Fed. Appx. 207, 208 (11th Cir. 2008).
Plaintiffs’ argument, however, is that this hearing violates due process because it does not provide them with an additional venue to argue that they are unable to pay their child support. Plaintiffs’ complaint is merely that Plaintiffs cannot present evidence of ability to pay at this specific hearing. Plaintiffs argue without support that “[t]he pre-deprivation hearing must contemplate ability to pay.” See Am. Compl. at ¶ 224. This argument ignores all other opportunities to raise ability to pay, and conflates the civil enforcement process with criminal due process concerns.
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In fact, the named Plaintiffs admit that they presented their ability to pay and that their child support obligation was imposed only after at least one, sometimes more than one, hearing in front of a court wherein their ability to pay was considered. See Am. Compl. at ¶¶ 30, 50, 66, 68, 70, 98. While Plaintiffs have asserted that they are still unable to pay the amounts ordered by the family court, the fact that they are unhappy with the outcome does not negate the fact that they were able to argue and have considered their ability to pay.
Further, Plaintiffs’ Amended Complaint ignores the multiple options available to Plaintiffs prior to license suspension to argue ability to pay and mischaracterizes the nature of due process required prior to driver’s license suspension. These options include (1) an initial determination by either a court or FSD that the obligor is able to pay the amount of child support before an order for child support is entered, see MO. REV. STAT. § 452.340; (2) the opportunity to move the court for modification of the child support amount at any time, MO. REV. STAT. §§ 452.370, 454.496, 454.500; (3) the opportunity to return to the court to argue that a hardship has impeded their ability to pay their court order child support, MO. REV. STAT. § 454.1010.3; (4) the ability to enter into a payment plan with FSD at any time, including potentially one that requests a temporary reduction of payments on the underlying child support obligation to avoid license suspension; and (5) the administrative hearing officer or court after the notice of intent to suspend license is issued, MO. REV. STAT. § 454.1005.4. The Missouri statute at issue allows for driver’s license suspension only after an obligor is determined to owe an amount for support of his or her child, a determination which already considered the obligor’s ability to pay, and the obligor failed to pay child support. Plaintiffs do not argue and cannot establish that they were denied due process during these underlying proceedings.
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To the extent that Plaintiffs have not used the process provided to them by statute to have their ability to pay considered in a child support award, Plaintiffs have not met their burden to demonstrate the inadequacy of state-law procedures. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982) (“The fact that [plaintiff] failed to avail himself of the full procedures provided by state law does not constitute a sign of their inadequacy.”). To the extent that Plaintiffs ignore state law procedure, which allows consideration of ability to pay, while arguing only that the presuspension hearing should consider ability to pay, Plaintiffs seek to sidestep state process by bringing this federal lawsuit. District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71 (2009) (noting that a plaintiff cannot complain that state law procedures do not work when he has not tried them). Plaintiffs have previously successfully used state law procedures to argue their alleged inability to pay. Therefore, even if the pre-suspension hearing were to consider ability-to-pay yet again, it would merely provide Plaintiffs another bite of the apple to argue again their inability to pay and, therefore, would not make a “determinative difference” in the outcome. Lassiter v. Dept. of Social Services of Durham County, N.C., 452 U.S. 18, 33 (1981).
The essence of procedural due process is prior notice and an opportunity to be heard. Bd. Of Regents v. Roth, 408 U.S. 564, 573 (1972). Missouri law provides prior notice and ample opportunity for Plaintiffs to present evidence of their ability to pay and, as demonstrated by Plaintiffs’ Amended Complaint, every named Plaintiff has taken advantage of that opportunity. As such, Plaintiffs have failed to state a claim for a violation of their right to procedural due process, and the Court should dismiss such claims.
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CONCLUSION For the reasons stated, Defendants request this Court dismiss Plaintiffs’ Amended Complaint for the above-stated reasons, and for such other and further relief as this Court deems just and proper.
Respectfully submitted, ERIC S. SCHMITT Attorney General for the State of Missouri /s/Laura Robb_______ Laura M. Robb, #64117 Robert W. Phillips, #50470 Assistant Attorneys General P.O. Box 861 St. Louis, MO 63188 Telephone: 314-340-7861 Facsimile: 314-340-7029 laura.robb@ago.mo.gov robert.phillips@ago.mo.gov Attorneys for Defendants
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was filed electronically with the Clerk of the Court on November 8, 2019, to be served by operation of the Court’s electronic filing system upon all parties.
/s/ Laura M. Robb Laura M. Robb Assistant Attorney General
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 Case: 4:19-cv-00398-RWS Doc. #: 80 Filed: 05/01/20 Page: 1 of 28 PageID #: 1133

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NATHAN WRIGHT, et al. Plaintiffs,
v.
FAMILY SUPPORT DIVISION OF MISSOURI DEPARTMENT OF SOCIAL SERVICES, et al.
Defendants.

) ) ) ) ) ) Case No. 4:19-CV-398-RWS ) ) ) ) ) ) )

MEMORANDUM AND ORDER

This case is before me on the Defendants’ motion to dismiss Plaintiffs’

Amended Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1) and for failing to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). In

their complaint, Plaintiffs challenge the constitutionality of Missouri’s system for

suspending the driver’s licenses of non-custodial parents who are unable to pay

court-ordered child support. For the reasons discussed below, I will grant

Defendants’ motion as to Plaintiffs’ equal protection and fundamental rights claims

but will deny the motion as to the procedural due process claim.

BACKGROUND

Plaintiffs in this case are non-custodial parents who have had their driver’s

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licenses suspended by the Missouri Department of Social Services’ Family Support Division (“FSD”). Am. Compl. at ¶ 15-18. Defendants are the Family Support Division of the Missouri Department of Social Services, Michael Parson in his official capacity as Governor of Missouri, Jennifer Tidball in her official capacity as Acting Director of the Missouri Department of Social Services, Reginald McElhannon in his official capacity as Interim Director of the Family Support Division, Kenneth Zellers in his official capacity as Acting Director of the Missouri Department of Revenue, and Joseph Plaggenberg in his official capacity as Director of the Motor Vehicle and Driver Licensing Division of the Missouri Department of Revenue (collectively, “Defendants”).
Plaintiffs filed this action on March 4, 2019 and filed an amended complaint on August 30, 2019. In the amended complaint Plaintiffs asserted the following claims: (1) violation of equal protection and fundamental fairness under Griffin v. Illinois and Bearden v. Georgia; (2) violation of equal protection under San Antonio School District v. Rodriguez; (3) violation of fundamental right to travel; (4) violation of equal protection under James v. Strange; and (5) violation of procedural due process.
After filing their amended complaint, Plaintiffs filed a motion for preliminary injunction and a motion to certify a class on November 1, 2019. Defendants then filed their motion to dismiss on November 4, 2019. A hearing on
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the motion for preliminary injunction and motion for class certification was held on December 12, 2019 before United States District Judge Ronnie L. White. The case was subsequently transferred to me. Since the motions for preliminary injunction and class certification will depend on the outcome of the motion to dismiss, I am ruling on it first.
STATEMENT OF FACTS Under Missouri law, the FSD has the authority to issue an order suspending the driver’s licenses of parents who fail to pay child support. § 454.1003 RSMo. The statute provides that FSD may suspend the license of any person who is $2500 or three or more months in arrears, whichever is less. Id. The law does not provide an indigency exception. FSD suspended Plaintiffs’ licenses under this statute. The suspensions caused hardships to Plaintiffs, making it difficult for them to maintain employment, see their children, and take care of the children in their custody. Am. Compl. at ¶¶ 15-18, 152. Under the statute, 60 days before FSD suspends the license of a person in arrears, FSD is required to send notice to the person. § 454.1003 RSMo. As outlined in the statute, the notice lists three options for preventing license suspension: pay off the arrearage, enter a payment plan approved by FSD or the court, or request a hearing before the court or the director. Am. Compl. at ¶ 128. The notice does not indicate that any of the options will take into account a
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person’s ability to pay. Am. Compl. at ¶ 27. Despite the notice requirement, several plaintiffs do not recall receiving
notice prior to their license suspension. Am. Compl. at ¶¶ 45, 72. Additionally, when FSD sends the notice, the recipient often receives the notice after the 60 day reply period has elapsed. Am. Compl., Ex. 9, at ¶ 4. Even when Plaintiffs received notice, they were unable to effectively contest the license suspension. Because of their indigency, Plaintiffs were unable to pay off their arrears. The payment plans offered by FSD often did not allow for Plaintiffs to reduce their payments below their current support order amounts, or they required payments that were still beyond Plaintiffs’ financial means. Am. Compl. at ¶ 130.
The last option for preventing a license suspension is a hearing either before the FSD Director or a state court. Am. Compl. at ¶ 131. The hearing process also does not allow for consideration of an individual’s ability to pay. Am. Compl. at ¶ 131. The only issues that may be addressed in the hearing are whether the parent is the correct person; whether the arrearage is greater than or equal to $2500 or three months of support payments; and whether the parent has entered a payment plan. Am. Compl. at ¶¶ 131, 132. Because of these limitations, Plaintiffs were unable to effectively contest license suspension, even though their failure to pay was nonwillful.
Plaintiffs also contend that once the state suspends a license, it is difficult to
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stay the suspension or have the license reinstated. Am. Compl. at ¶ 134-148. For Plaintiffs to have their licenses reinstated, FSD or a court must determine that the arrearage was paid in full. § 454.1013.1 RSMo. Additionally, FSD only offers stays if parents begin making timely payments in accordance with their current child support order and toward their arrears. FSD is statutorily prohibited from issuing stays based solely upon hardship; only a court may provide a stay for hardship. Am. Compl. at ¶ 136; § 454.1010.3 RSMo. According to Plaintiffs, in practice, the process for obtaining a stay or reinstatement is unclear and inconsistent. Am. Compl. at ¶¶ 139, 142.
For these reasons, Plaintiffs have been living without their driver’s licenses. Because Plaintiffs’ licenses are suspended, they have been unable to maintain steady work, pay child support, and in some cases, have been unable to regularly see their children. Am. Compl. at ¶¶ 59, 159-166. Additionally, many of the plaintiffs without alternatives elect to drive with a suspended license, risking criminal charges, in order to get to work or pick up their children from school. Am. Compl. at ¶¶ 152, 174-179.
LEGAL STANDARD Dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure is appropriate if the party asserting jurisdiction has failed to satisfy a threshold jurisdictional requirement. See Herden v. United States, 726 F.3d 1042, 1046 (8th
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Cir. 2013). “Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction – its very power to hear the case – there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). Therefore, when ruling upon a motion to dismiss under Fed. R. Civ. P. 12(b)(1), a district court is free to review matters outside of the complaint such as affidavits and documents. Id. at 729–31. A Rule 12(b)(1) motion is distinct in that, unlike a Rule 12(b)(6) motion, when a factual challenge to jurisdiction is made by a movant there is no presumptive truthfulness attached to a plaintiff’s allegations in the complaint. Id. at 730 (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir.1977)).
When considering a Rule 12(b)(6) motion, I must assume the factual allegations of the complaint to be true and construe them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). I am not, however, bound to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corporation v. Twombly, 555 U.S. 544, 555 (2007).
To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.C. 662, 667 (2009) (quoting Twombly, 555 U.S. at 570). Although “specific facts are not necessary,” the plaintiff must
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allege facts sufficient to “give fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly,550 U.S. at 555).
A plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint “must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Id. at 562(quoted case omitted). This standard “simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim or element].” Id. at 556. The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id.
DISCUSSION Abstention
Defendants moved to dismiss the complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction under the RookerFeldman doctrine. Defendants also seek dismissal of the complaint under the Younger Abstention doctrine. “Abstention is an exception to the general rule that ‘federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant.’” Oglala Sioux Tribe v. Fleming, 904
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Case: 4:19-cv-00398-RWS Doc. #: 80 Filed: 05/01/20 Page: 8 of 28 PageID #: 1140
F.3d 603, 610 (8th Cir. 2018) (quoting Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013)). Neither abstention doctrine applies in this case, so Defendants’ motion to dismiss on these grounds will be denied. Rooker-Feldman Doctrine
Defendants first argue that I do not have subject matter jurisdiction over Plaintiffs’ claims under the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). “The Rooker–Feldman doctrine precludes lower federal courts from exercising jurisdiction over actions seeking review of, or relief from, state court judgments.” Hageman v. Barton, 817 F.3d 611, 614 (8th Cir. 2016). The doctrine is limited in scope and does not bar jurisdiction over independent claims arising from state court proceedings or general constitutional challenges that are not inextricably intertwined with the claims asserted in state court. Hageman, 817 F.3d at 614; Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995) (“A claim is inextricably intertwined if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.”). In other words, “the boundaries for application of the doctrine depend upon the nature of the federal claims and whether the plaintiff in federal court, in fact, seek relief from the state court judgment.” Hageman, 817 F.3d at 614.
Here, Plaintiffs are not attacking the underlying support order. Rather, they
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are attacking the FSD license suspension scheme, which is a mechanism provided by Missouri law to enforce support orders. Although the underlying support order may be relevant to these claims, a decision in this case does not require review of or relief from the state order and does not “succeed only to the extent the state court wrongly decided the issues before it.” Charchenko, 47 F.3d at 983. Therefore, these claims are not inextricably intertwined with the state court order, but rather are independent claims arising from the state court proceeding. Accordingly, Rooker-Feldman does not apply. Younger Abstention Doctrine
Defendants also argue the complaint should be dismissed pursuant to the Younger abstention doctrine. In Younger v. Harris, the United States Supreme Court held that federal courts should abstain from reviewing constitutional challenges to state statutes brought by parties subject to pending state criminal proceedings under them. 401 U.S. 37, 54 (1971). Although Younger considered abstention in the context of a criminal proceeding, the Supreme Court has extended the doctrine to certain state civil proceedings that are akin to criminal prosecution or that implicate a State’s interest in enforcing orders of its courts. Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013). Specifically, abstention is warranted when “(1) there is an ongoing state proceeding, (2) which implicates important state interests, and (3) there is an adequate opportunity to
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raise any relevant federal questions in the state proceeding.” Geier v. Missouri Ethics Com’n, 715 F.3d. 674, 678 (8th Cir. 2013).
In this case, Younger abstention is not warranted. First, there is no ongoing state proceeding. Although Defendants argue that Plaintiffs are all subject to an ongoing child support order issued and monitored by the Circuit Court of St. Louis County, Missouri, these do not constitute ongoing proceedings. As the Supreme Court has noted, “the doctrine ‘reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiffs.’” Oglala Sioux Tribe v. Fleming, 904 F.3d 603, 610 (8th Cir. 2018) (quoting Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). The claims in this case do not implicate state judicial processes. Unlike the plaintiffs in Oglala Sioux Tribe v. Fleming, who sought an array of reforms to South Dakota’s temporary custody proceeding, Plaintiffs here are challenging an administrative enforcement mechanism and only seek reform of a single aspect of the license suspension scheme. Finally, the administrative enforcement action is not ongoing. Plaintiffs’ licenses have been suspended and no further hearings related to those decisions are pending. Therefore, the first Younger factor weighs against abstention.
Similarly, the third Younger factor weighs against abstention. Defendants argue that Plaintiffs had, and continue to have, the opportunity to raise any
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constitutional claims in front of the state circuit court, because they can always seek state court review of their child support obligation. This review includes consideration of an argument that hardship has impeded their ability to pay or that their driver’s license suspensions should be stayed.
Defendants misinterpret Plaintiffs’ constitutional claims. Plaintiffs are not challenging their support orders; they are challenging the administrative agency’s ability to suspend licenses without considering Plaintiffs’ ability to pay. Defendants cite to Ronwin v. Dunham for the proposition that Younger is fully applicable to state administrative proceedings regarding the suspension of driver’s licenses, but Ronwin is distinguishable from this case. Ronwin v. Dunham, 818 F.2d 675 (8th Cir. 1987). First, the license suspension at issue in Ronwin was related to traffic violations and implicated the safety of state roadways. Second, in Ronwin, the driver’s license suspension was automatically stayed pending an administrative hearing. Here, there are no hearings pending and thus no guaranteed opportunity for Plaintiffs to raise their claims.
The second Younger factor weighs in favor of abstention, because the State has a strong interest in ordering and enforcing child support obligations, Clark v. Jeter, 486 U.S. 456, 462 (1988). However, that factor alone is insufficient to warrant abstention. As a result, Defendants’ motion to dismiss under the Younger abstention doctrine is denied.
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Dismissal Pursuant to 12(b)(6) Defendants also seek dismissal of each of the individual claims pursuant to
Fed. R. Civ. P. 12(b)(6). Although documents have been filed in support of Plaintiffs’ motion for preliminary injunction and class certification, my consideration of the 12(b)(6) motion will be limited to the pleadings and exhibits that are integral, authentic, and matters of public record. Violation of Equal Protection and Fundamental Fairness under Griffin v. Illinois and Bearden v. Georgia and Violations
Plaintiffs’ first two claims challenge Defendants’ license suspension scheme under the Equal Protection Clause of the Fourteenth Amendment. U.S. Const. amend XIV, § 1. Although Plaintiffs bring two separate claims, one under Griffin v. Illinois, 351 U.S. 12, 13 (1956), and one under San Antonio Indep. School District v. Rodriguez, 411 U.S. 1 (1973), the claims are substantially similar, and I will consider them together.
Plaintiffs argue that they are entitled to a heightened standard of review because they satisfy the San Antonio Indep. School District v. Rodriguez test to determine when wealth should be treated a suspect classification. See Rodriguez, 411 U.S. 1, 20 (1973). In Rodriguez, the Court explained that “[t]he individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence,
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they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” Id. In explaining the two-pronged test, the Rodriguez Court specifically relied on Griffin and its progeny, noting that its precedents provided a proper starting point for analysis of wealth as a suspect classification. Id.; see also ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018).
The test in Rodriguez establishes the threshold requirements for determining whether a class of indigent individuals is subject to heightened scrutiny. See Rodriguez, 411 U.S. at 18-20. If these requirements are met, then the Court must determine whether the class falls within the confines of the Griffin line of cases. See Sharon Motley, Plaintiff, v. Hal Taylor, in his official capacity as Sec’y of the Alabama Law Enf’t Agency, Defendant., No. 2:19-CV-478-WKW, 2020 WL 1540391 (M.D. Ala. Mar. 31, 2020); ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018). If they are not, then rational basis review is appropriate. Rodriguez, 411 at 28-29. Here, Plaintiffs have alleged facts sufficient to establish that their claim satisfies the Rodriguez test. Am. Compl. at ¶¶ 49, 65, 74-75,89-90, 112-126 129130. Accordingly, I now turn to whether the claims fall within the scope of the Griffin line of cases.
Plaintiffs argue that the suspension scheme at issue here falls within the scope of Griffin because it is quasi-criminal in nature and is a logical extension of the current caselaw. Plaintiffs contend that the fundamental message from the
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Griffin line of cases is that a state cannot punish an individual for non-willful nonpayment and that a scheme that punishes an individual on that ground is subject to heightened review. Defendants argue that Griffin applies to a narrow subset of cases involving liberty interests or access to the courts in criminal and quasicriminal judicial proceedings. Defendants contend that Plaintiffs’ claims do not fall within either of these categories and are only entitled to rational basis review.
In Griffin, the Supreme Court invalidated a law requiring all criminal defendants to purchase transcripts of their trials in order to appeal. Griffin v. Illinois, 351 U.S. 12, 13 (1956). Although the law was facially neutral, the Court determined that it violated the Equal Protection and Due Process Clauses of the Constitution because in practice it denied indigent defendants the same right to appeal as other defendants.
In the years following Griffin, the Supreme Court extended its protections for indigent litigants to other areas, creating a number of exceptions to the general rule that wealth is not a suspect classification. First, the Court extended Griffin’s protection of access to appeals to non-felony cases, see Mayer v. Chicago, 404 U.S. 189 (1971). The Court then extended Griffin to protect indigent criminal defendants from policies that punish them for their inability to pay fines, restitution, and court expenses. See Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971); Bearden v. Georgia, 461 U.S. at 661 (1983).
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The Supreme Court also extended Griffin to cover two areas outside of the criminal context. First, the Court extended Griffin protections to policies that restrict access to courts in civil cases involving “state controls or intrusion on family relationships.” M.L.B v. S.L.J., 519 U.S. 102 (1996) (holding that a statute requiring a mother to pay record preparation fees in order to appeal termination of her parental rights violated Equal Protection); see also Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that a State could not deny a divorce to a married couple based on their inability to pay court costs); Little v. Streater, 452 U.S. 1 (1981) (holding that a state must pay for blood grouping tests sought by an indigent defendant to enable him to contest a paternity suit); c.f. United States v. Kras, 409 U.S. 434 (1973) (holding the requirement to pay filing fees to obtain discharge in bankruptcy is not subject to heightened review); Ortwein v. Schwab, 410 U.S. 656 (1973) (holding that an appellate filing fee, as applied to indigents seeking to appeal an adverse welfare decision, was not subject to heightened review)., The Court has also extended Griffin to policies that restrict access to the political process. Bullock v. Carter, 405 U.S. 134 (1972) (holding that a Texas primary election filing fee system, under which cost of primary elections is borne by candidates, with no alternative means of obtaining a position on primary ballots contravenes equal protection).
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Plaintiffs’ case does not fall into any of the four exceptions to the general rule that wealth is not a suspect classification. The state is not controlling or intruding on Plaintiffs’ family relationships or their access to the political process. Although a driver’s license may be critical for an individual to maintain their livelihood, a claim arising from a driver’s license suspension does not fit within the scope of the Griffin exception and does not warrant heightened scrutiny. See Mendoza v. Garrett, 358 F.Supp.3d 1145, 1171 (D. Or. 2018) (citing Fowler v. Benson, 2017 WL 6379676 at *7 (E.D. MI. Dec. 14, 2017) (overturned on other grounds)) (holding plaintiffs’ claim that suspension of their driver’s license for inability to pay traffic fines violated the Equal Protection Clause under Griffin was not likely to succeed on the merits because it was rationally related to a legitimate state interest); but see. Robinson v. Purkey, 326 F.R.D. 105 (M.D. Tenn. 2018) (holding that the plaintiff was likely to succeed on the merits of their claim that suspension of a driver’s licenses for inability to pay violated Equal Protection under Griffin). As a result, I will apply rational basis review to Plaintiffs’ claims.
Under rational basis review, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440. This is true “even if the law seems unwise or works to the disadvantages of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632 (1996).
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“The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, Tex v. Cleburne Living Center, 473 U.S. 432, 446 (1985). Additionally, classifications based on an irrational prejudice or animosity do not survive rational basis review. Id. at 450; Romer, 517 U.S. at 634. In areas of social and economic policy, a statutory classification “that neither proceeds along suspect lines nor infringes fundamental constitutional rights” will be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns., Inc., 508 U.S. 307, 313 (1993).
Here, Plaintiffs do not argue that the classification created by the license suspension scheme is “based on an irrational prejudice or animosity.” City of Cleburne, 473 U.S. at 450. So, the statute will withstand rational basis review if there is any “reasonably conceivable state of facts that could provide a rational basis for the classification.” Id.
As Defendants have explained, Missouri has a legitimate interest in collecting child support from parents on behalf of their children and suspension of an individual’s driver’s license aids that purpose by encouraging payment. Defs.’ Mem. in Supp. of Their Mot. to Dismiss at 14 (citing Weiss v. Weiss, 392 F.3d 306, 315 (8th Cir 2004). Plaintiffs argue suspending the license of someone with the inability to pay will make it more difficult for them to pay child support in the
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future. However, social and economic legislation like the statute at issue “carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.” Hodel v. Indiana, 452 U.S. 314, 331–332 (1981). Here, a plausible basis exists for the statute, so “the Court’s scrutiny must end.” Knapp v. Hanson, 183 F.3d 786, 789 (8th Cir. 1999). The statute in this case withstands the equal protection challenge because Defendants have identified a rational reason for the statute. Id.
Plaintiffs do not allege facts sufficient to claim the statute will be invalidated on rational basis review, so Counts 1 and 2 of the complaint will be dismissed. Violation of the Fundamental Right to Travel
Plaintiffs argue that the FSD license suspension scheme violates their fundamental right to travel. Although a specific right to travel is never mentioned in the Constitution, “the ‘constitutional right to travel from one State to another’ is firmly embedded” in Supreme Court jurisprudence. Saenz v. Roe, 526 U.S. 489, 498 (1999). The right to travel has three components: (1) “the right of a citizen of one State to enter and to leave another State,” (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State,” and (3) the right “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Id. Although
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several circuits have extended the right to travel to intrastate travel, the Eighth Circuit has not definitely decided whether intrastate travel is part of the fundamental right to travel. Doe v. Miller, 405 F.3d. 700, 713 (8th Cir. 2005) (declining to decide whether there is a fundamental right to intrastate travel).
But, even assuming a right to intrastate travel, Plaintiffs fail to state a claim. Although the inability to legally drive is an extreme hardship on Plaintiffs, courts have consistently held that “burdens on a single mode of transportation do not implicate the right to interstate travel.” See Miller v. Reed, 176 F.3d 1202, 12051206 (9th Cir. 1999); see also Matthew v. Honish, 233 Fed. Appx 563 (7th Cir. 2007); Owner Operator Indep. Drivers Ass’n, Inc. v. Pennsylvania Tpk. Comm’n, 934 F.3d 283 (3d Cir. 2019), cert. denied, 140 S. Ct. 959 (2020); Henderson v. Haberberger, 2013 WL 4678087, No. 4:13-cv-1699-RWS (Aug. 30, 2013). In Dixon v. Love, the Supreme Court held that state could summarily suspend or revoke an individual’s driver’s license without a full administrative hearing, not affording the possession of a driver’s license the weight of a fundamental right. See Miller v. Reed, 176 F.3d 1202, 1205-1206 (9th Cir. 1999) (citing Dixon v. Love, 431 U.S. 105, 112–16 (1977) (holding that a post depravation hearing is sufficient when the state’s interest in the safety of its highways is substantial and risk of erroneous is low because the suspension is based on the number of traffic violations accrued)). Therefore, suspension of a license, although burdensome,
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does not violate the fundamental right to travel. Plaintiffs fail to state a claim for violation of their right to travel, and I will dismiss Count 3 of the complaint. Violation of Equal Protection under James v. Strange
Plaintiffs’ fourth claim alleges that Defendants’ driver’s license suspension scheme constitutes extraordinary collection under James v. Strange, 407 U.S. 128, 134-35 (1972). In James v. Strange, the Supreme Court struck down a Kansas recoupment statute that allowed the State to recover legal defense expenditures from indigent criminal defendants in subsequent civil proceedings. Id. The statute stripped from indigent defendants a number of protections available to civil judgement debtors, including restrictions specifically designed to protect indigent debtors. Id. at 134-35. The Court held that denying indigent defendants the same protections provided to other civil judgment debtors violated the Equal Protection Clause.
Plaintiffs contend that James v. Strange applies in this case because Defendants are unlawfully enforcing a debt collection method not afforded to private creditor. But this misapplies Strange. In Strange, “[t]he Court found 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 v. Oregon, 417 U.S. 40, 47 (1974). Here, Plaintiffs are not looking at a single group of similarly situated debtors, but rather
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comparing Plaintiffs to all private debtors. This ignores the Court’s explicit recognition in Strange “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 be identical.” Strange, 407 U.S. at 138. Accordingly, there does not need to be exact parity between the State and private creditors. See Fowler v. Benson, 924 F.3d 247, 263 (6th Cir. 2019).
Since Plaintiffs fail to show discrimination between similarly situated creditors, James v. Strange is inapposite. Accordingly, the Plaintiff’s fail to state a claim under James v. Strange, and I will dismiss Count 4 of the complaint. Violation of Procedural Due Process
Finally, Plaintiffs claim Defendants’ license suspension scheme violates the Due Process Clause of the Fourteenth Amendment. In particular, Plaintiffs argue Defendants failed to provide adequate notice or an opportunity to be heard on the issue of ability to pay prior to their license suspensions. Defendants argue Plaintiffs had notice and an opportunity to be heard prior to the suspension of their licenses, because there are numerous mechanisms by which individuals may modify their support order or otherwise request the state stay the license suspension due to hardship.
The Due Process Clause protects individuals from a state’s impermissible
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deprivation of a protected property interest. Mathews v. Eldridge, 424 U.S. 319 (1976). Procedural due process claims consist of two elements: (1) the existence of a liberty or property interest entitled to due process protection, and (2) deprivation of that interest without sufficient notice and opportunity to present objections. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950) (citing Milliken v. Meyer, 311 U.S. 457, 463 (1940)). “Property interests are ... created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Once a plaintiff establishes a property interest, “the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Plaintiffs have a protected property interest in their continued possession of a driver’s license. See Bell v. Burson, 402 U.S. 535, 539 (1971) (“Once [driver’s] licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood ... [and they] are not to be taken away without that procedural due process required by the Fourteenth Amendment.”) (citation omitted); Dixon v. Love, 431 U.S. 105, 112 (1977); Mackey v. Montrym, 443 U.S. 1, 10 (1979). The question, therefore, is whether Plaintiffs have plausibly alleged that the process provided was insufficient. See Morrissey, 408 U.S. at 481.
The “fundamental requirement of due process is the opportunity to be heard
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at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. at 333. “Generally, where deprivations of property are authorized by an established state procedure, due process is held to require pre-deprivation notice and hearing in order to serve as a check on the possibility that a wrongful deprivation would occur.” Id. (internal quotation marks and citation omitted). “Due process is a flexible concept, however, and calls only for such procedural protection as the particular situation demands.” Matthews, 424 U.S. 334; Moore v. Warwick Pub. School Dist. No. 29, 794 F.2d 322, 327 (8th Cir.1986).
In order to determine what procedural protection a particular situation demands, Matthews outlines three factors for me to consider: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards,” and (3) “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 335.
In this case, the first and third factors are straightforward. First, Plaintiffs have a significant private interest in maintaining their driver’s licenses. Suspension of an individual’s driver’s license makes it difficult to maintain employment, pick children up from school, and see non-custodial children. Am. Compl. at ¶ 2 & 3.
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Additionally, in rural areas of Missouri, driving may be the only means of getting to work, making it a critical component of maintaining a livelihood. The Supreme Court has “frequently recognized the severity of depriving a person of the means of livelihood.” Loudermill, 470 U.S. 532, 543 (1985); see also Bell, 402 U.S. at 539 (recognizing that a driver’s license may become “essential in the pursuit of a livelihood.”); Fowler, 924 F.3d at 269 (Donald, J., dissenting).
Conversely, the government’s interests in suspending driver’s licenses without a pre-deprivation hearing are minimal. Defendants advance no argument that permitting Plaintiffs to challenge their ability to pay fines before having their licenses suspended would cause undue fiscal or administrative burdens. Additionally, unlike other cases in which a state has suspended a driver’s license prior to a hearing in order to protect the safety of drivers on the State’s roadways, there are no safety concerns here. Dixon v. Love, 431 U.S. 105, 112 (1977). Lastly, because Defendants already provide a pre-depravation hearing on the identity of the parent in arrears and the total amount of arreage, the burden of considering ability to pay during the hearing is minimal.
Whether the procedure provided to Plaintiffs was sufficient, therefore, largely turns on the last Matthews factor: the risk of erroneous deprivation. First, Plaintiffs contend that the procedure provided by Defendants risks erroneous deprivation because it does not provide them an opportunity to be heard on the
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ability to pay prior to deprivation. Defendants argue that ability to pay need not be considered prior to suspension, because it is considered when determining the initial support amount and when individuals petition to have their support orders reviewed and modified.
At this stage of the litigation, Plaintiffs are not required to prove their claim. They need only allege facts sufficient to state a claim that is plausible on its face. Iqbal, 556 U.S.C. at 667 (quoting Twombly, 555 U.S. at 570). Plaintiffs meet that burden. In considering the private interest involved here, the Supreme Court has held “that when a State seeks to terminate an interest such as [a driver’s license], it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.” Bell v. Burson, 402 U.S. 535, 542 (1971). “[I]n reviewing state action in this area [the Court] look[s] to substance, not bare form to determine whether constitutional minimums have been honored.” Id. at 541. Plaintiffs have plausibly alleged sufficient facts that ability to pay plays a crucial role in awarding and enforcing child support and is therefore “appropriate to the nature of the case.” See Id.; Fowler, 924 F.3d at 269-70 (Donald, J., dissenting). First, Plaintiffs point to other mechanisms for enforcing child support that require consideration of ability to pay. Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 7 (citing Turner v. Rogers, 564 U.S. 431, 448 (2011) (holding that a parent cannot be incarcerated for civil contempt for failure to pay child support,
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absent an express finding on inability to pay). Second, Plaintiffs note that ability to pay is embedded in the statutory scheme because it is considered when support is initially awarded and when individuals seek modification or review of their support orders. Am. Compl. at ¶¶ 112-25.
Defendants do not argue that ability to pay is irrelevant, but rather that Plaintiffs have had multiple opportunities to present arguments on ability to pay. First ability to pay is addressed at the initial determination of support. Second, Plaintiffs have the opportunity to move the court for modification of their support agreement. Third, Plaintiffs can petition the court to stay a license suspension due to hardship. Fourth, Plaintiffs can enter a payment plan with FSD at any time. Finally, the license suspension statute provides for a hearing. Defs.’ Mem. in Supp. of Their Mot. to Dismiss Pls.’ Am. Compl. at 23.
The first two instances present the same issues: (1) they occur at a time before the licensee is in default, a time when the licensee may, in good faith, believe he has the ability to pay; and (2) they address the assessment of child support in the underlying support order, not the specific amount related to license suspension. See Stinnie v. Holcomb, 355 F. Supp. 3d 514, 530 (W.D. Va. 2018). The third instance comes after the suspension and thus does not provide predeprivation review. See also Keating v. Nebraska Public Power District, 562 F.3d 923, 928 (8th Cir. 2009) (recognizing “two notable exceptions” to this rule: (1)
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“where there is a need for quick action by the State when there is a compelling or overriding interest in a summary adjudication;” and (2) “where the deprivation results from a random and unauthorized act by a state actor”). Additionally, Plaintiffs allege that the process for obtaining a stay is difficult to navigate and does not in practice consider ability to pay. Am. Comp. at ¶¶ 136-37. Plaintiffs also allege facts indicating that the payment plans provided by FSD do not adequately consider ability to pay and thus do not provide the necessary process. Am. Compl. at ¶¶ 102,130. Finally, the hearing provided prior to suspension does not allow Plaintiffs to argue inability to pay. Am. Comp. at ¶ 226. Because none of the available procedures allow Plaintiffs to be heard on their failure to pay child support and later license suspension, the procedures may not provide a meaningful opportunity to contest the license suspension. See Stinni, 355 F. Supp. 3d at 53031. Therefore, these facts are sufficient to plausibly allege the current process could result in erroneous deprivation. See Loudermill, 470 U.S. at 543-44 (holding the plaintiffs stated a claim under the Due Process clause).
Because Plaintiffs have plausibly alleged the Defendants violated their right to due process, Defendants’ motion to dismiss the Procedural Due Process Claim in Count 5 of the complaint will be denied. Claims Against Defendant Governor Parsons
Plaintiffs conceded to dismissal without prejudice of Governor Parsons in
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his official capacity. Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at n. 2. As Defendants note, the Governor’s broad duty to enforce state law is not sufficient to make him a party-defendant. Church v. Missouri, 913 F.3d 736, 749 (8th Cir. 2019). Accordingly, all claims against Governor Parsons are dismissed.
CONCLUSION Plaintiffs failed to state claims for violations of the Equal Protection Clause and the fundamental right to travel. However, Plaintiffs pleaded facts sufficient to state a claim under the Due Process Clause of the Fourteenth Amendment. Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) [49] is DENIED. IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [49] is GRANTED as to Counts 1-4 and DENIED as to Count 5. IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Governor Parsons in his official capacity is GRANTED.

Dated this 1st day of May 2020.

RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

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 Case: 4:19-cv-00398-RLW Doc. #: 22 Filed: 08/30/19 Page: 1 of 51 PageID #: 170

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

NATHAN WRIGHT, CAMESE

)

BEDFORD, ASHLEY GILDEHAUS,

)

and LISA MANCINI, on behalf of

)

themselves and others similarly situated, )

)

Plaintiffs,

)

)

v.

)

Case. No. 4:19-cv-398

)

FAMILY SUPPORT DIVISION of the )

CLASS ACTION

Missouri Department of Social Services; )

JURY DEMANDED

MICHAEL PARSON, in his official

)

capacity as Governor of Missouri;

)

PLAINTIFFS’ AMENDED

JENNIFER TIDBALL, in her official

)

COMPLAINT

capacity as Acting Director of the

)

Department of Social Services;

)

REGINALD MCELHANNON, in his

)

Official capacity as Interim Director of the )

Family Support Division;

)

KENNETH ZELLERS, in his official

)

capacity as Acting Director of the

)

Department of Revenue;

)

JOSEPH PLAGGENBERG, in his official )

capacity as Director of the Motor Vehicle )

and Driver Licensing Division,

)

)

Defendants.

)

____________________________________)

Introduction

1. This case is about the Missouri Department of Social Services’ Family Support

Division and the Missouri Department of Revenue perpetuating a cycle of poverty by

unconstitutionally suspending the driver’s licenses of parents who are unable to pay child support.

Under Missouri law, the Family Support Division (“FSD”) has the authority to issue an order

suspending the driver’s license of any person who owes at least three months’ worth of child

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support payments or at least $2,500, whichever is less. These suspensions are meant to coerce payment, but for those who cannot pay, the loss of a driver’s license counterproductively decreases the likelihood that a person will be able to pay child support, as it often leads to job loss, reduced employment opportunities, eviction, and greater difficulty carrying out the responsibilities of everyday life.
2. Moreover, suspending the driver’s licenses of non-custodial parents makes it more difficult for them to see their children regularly, pick them up for visitation, or share in caring for them by taking them to doctor’s appointments and participating in school activities. Thus, these license suspensions harm the interests of the children who are ostensibly meant to benefit from child support enforcement by making it virtually impossible for non-custodial parents with limited means to play a meaningful role in their children’s lives as well as ensuring that parents are unable to earn the money that they would gladly use to support their children.
3. Many parents whose licenses are suspended face an impossible choice: comply with the suspensions and lose their jobs, homes, and ability to care for their families, or drive illegally and face the threat of further debt and criminal charges if they are caught.
4. License suspension as a debt collection method is unconstitutional and irrational when enforced against people who cannot afford to pay: no amount of coercion can force money out of a person who has none. Missouri’s FSD traps parents in an inescapable cycle of poverty and criminal culpability by suspending their driver’s licenses.
5. FSD’s lack of ability-to-pay hearings, failure to provide competent responses to requests for reinstatement, and overall arbitrariness robs non-custodial parents of their ability to drive, thus severely hampering their ability to earn a living, provide for their children, and secure their families’ wellbeing.
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6. Suspending the licenses of parents who are unable to pay child support violates their substantive due process, equal protection, and procedural due process rights under the United States Constitution.
7. By and through their attorneys, on behalf of themselves and all others similarly situated, Plaintiffs Nathan Wright, Camese Bedford, Ashley Gildehaus, and Lisa Mancini seek declaratory and injunctive relief against Defendants in their official capacities to end this unconstitutional wealth-based suspension scheme.
Nature of the Action 8. Defendants routinely suspend the driver’s licenses of parents who fail to pay child support, even if nonpayment is non-willful. Plaintiffs seek declaratory and injunctive relief prohibiting these suspensions. 9. Because Defendants enforce license suspensions as penalties for nonpayment with no indigence exception, the suspensions amount to wealth-based discrimination in violation of substantive due process and equal protection rights. 10. Because Defendants enforce a complete deprivation against parents who are completely unable to satisfy their child support requirements, affected parents are a suspect class, and Defendants’ discrimination violates equal protection rights, as it is not narrowly tailored to a compelling government interest. 11. Because license suspension impedes parents’ ability to travel without being narrowly tailored to a government interest, the suspensions violate substantive due process rights. 12. Because Defendants deprive parents of their property interest in their driver’s licenses without a meaningful hearing — that is, a pre-deprivation ability-to-pay hearing determining whether nonpayment was willful — or notice of such a hearing, the suspensions violate procedural due process rights.
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Jurisdiction and Venue 13. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 14. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 15. Plaintiff Nathan Wright is a 39-year-old resident of Farmington, Missouri. Ex. 1, Wright Decl. Mr. Wright currently owes approximately $30,000 in arrears for support of his daughter, who is now nineteen years old. Mr. Wright is unable to pay off his arrears. As a result of his inability to pay, Defendants suspended his driver’s license on May 24, 2018. Ex. 2, Wright Driver Record. Mr. Wright has custody of his two younger children, ages nine and four, and he is their sole provider and caretaker. Ex. 1, Wright Decl. 16. Plaintiff Camese Bedford is a 31-year-old navy veteran and a resident of St. Louis, Missouri. Ex. 3, Bedford Decl. Mr. Bedford’s driver’s license was suspended on February 25, 2017 because he owes over $2,500 in child support arrears that he cannot pay. Ex. 4, Bedford Driver Record. Mr. Bedford is currently unemployed, and his only income is the $140 he receives monthly in disability benefits, which covers only a fraction of his monthly expenses. Mr. Bedford’s license suspension has made it impossible for him to see his six-year-old daughter regularly. Ex. 3, Bedford Decl. 17. Plaintiff Ashley (Edison) Gildehaus is a 35-year-old resident of Salem, Missouri. Ex. 5, Gildehaus Decl. His driver’s license was suspended on April 7, 2018, and remains suspended because he owes approximately $14,000 in child support arrears for his son with his first wife. Id.; Ex. 6, Gildehaus Driver Record. Mr. Gildehaus lost his commercial driver’s license because of his driver’s license suspension and has missed out on lucrative job opportunities as a
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result. Ex. 5, Gildehaus Decl. Mr. Gildehaus has had and lost about five stays on his suspension and is currently waiting on another stay to take effect. Id.
18. Plaintiff Lisa Mancini is a 47-year-old resident of Joplin, Missouri. Ex. 7, Mancini Decl. Her driver’s license was suspended on March 16, 2018, because she owes approximately $21,072 in child support to her first husband, who was awarded full custody of their one son, now 20 years old, in 2014. Id.; Ex. 8, Mancini Driver Record. Ms. Mancini is currently unemployed and indigent. She is a single mother to her four younger children, ages 15, 12, 8, and 4, and she is their sole provider. Ex. 7, Mancini Decl.
19. Defendant Family Support Division (“FSD”) is a division within the Department of Social Services charged with “administer[ing] the state plan for child support enforcement.” MO Rev. Stat. § 454.400. Under Missouri Revised Statute § 454.400.2(1), FSD can “be sued” as the division of child support enforcement.
20. Defendant Michael L. Parson is the Governor of Missouri. As Governor, Mr. Parson is the head of the executive branch of the Missouri state government and is responsible for enforcing state law, including Missouri Revised Statute § 454.1003.1, which authorizes the FSD director to suspend the driver’s licenses of parents who fail to pay child support. Mr. Parson is sued in his official capacity as Governor. As the head of Missouri’s Executive Branch, Governor Parson oversees the state’s executive departments, including the Department of Social Services and the Department of Revenue.
21. Defendant Jennifer Tidball is the Acting Director of Missouri’s Department of Social Services. The Department “is responsible for coordinating programs to provide public
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assistance to help Missourians with . . . child support.”1 Ms. Tidball is sued in her official capacity as Acting Director of the Department of Social Services.
22. Defendant Reginald McElhannon is the Interim Director of the Family Support Division of Missouri’s Department of Social Services. Under Missouri Revised Statute § 454.1003.1, “the director of the division of child support enforcement [FSD] may issue an order . . . suspending an obligor’s license and ordering the obligor to refrain from engaging in a licensed activity (1) [w]hen the obligor is not making child support payments in accordance with a support order and owes an arrearage in an amount greater than or equal to three months[’] support payments or two thousand five hundred dollars, whichever is less, as of the date of service of a notice of intent to suspend such license.” Mr. McElhannon is sued in his official capacity as Interim Director of the Family Support Division.
23. Defendant Kenneth Zellers is the Acting Director of Missouri’s Department of Revenue, which houses Missouri’s Motor Vehicle and Licensing Division. Mr. Zellers is sued in his official capacity as Acting Director of the Department of Revenue.
24. Defendant Joseph Plaggenberg is the Director of the Motor Vehicle and Driver Licensing Division, which is part of the Department of Revenue. Mr. Plaggenberg oversees the Driver License Bureau which “issues, renews, suspends, revokes, and reinstates driver and nondriver licenses and driving permits.”2 He is sued in his official capacity as Director of the Motor Vehicle and Driver Licensing Division.
1 Office of the Director, Missouri Department of Social Services, https://dss.mo.gov/ddo/ (last visited Aug. 30, 2019). 2Motor Vehicle and Driver Licensing Division, Missouri Department of Revenue, https://www.mo.gov/government/guide-to-missouris-government/department-of-revenue/ (last visited Aug. 30, 2019).
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25. At all times relevant to the events, acts, and/or omissions alleged in this Complaint, Defendants have acted under color of state law, pursuant to their authority and responsibilities as officials of the State of Missouri.
Factual Background I. Introduction
26. The Family Support Division of Missouri’s Department of Social Services (“FSD”) orders the suspension of the driver’s licenses of non-custodial parents who are not making child support payments and whose arrears total either three months’ payments or $2,500, whichever is less. MO Rev. Stat. § 454.1003.1(1).
27. FSD makes no inquiry into the reason for nonpayment before ordering these suspensions; there is no exception for parents who failed to pay because they could not afford their payments. There is no pre-suspension hearing to determine whether nonpayment was willful, and no notice is sent to parents informing them that they can contest suspension based on inability to pay.
28. The loss of a driver’s license only makes indigent parents less able to meet their child support obligations and less able to participate in their children’s lives and share in parenting responsibilities. II. Plaintiffs’ Arrears and Suspensions
A. Nathan Wright 29. Nathan Wright is a 39-year-old resident of Farmington, Missouri. He is a single father and the sole provider for his two younger children, ages nine and four. Ex. 1, Wright Decl. 30. Mr. Wright also has a nineteen-year-old daughter who was in her mother’s custody when she was a minor. In 2006, Mr. Wright was ordered to pay $900 per month in child support for his daughter. After hiring a lawyer (and with great time and expense, especially given his low
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income), Mr. Wright eventually managed to get his payment amount reduced to $509. He has not been able to afford these payments, even at the reduced amount. Id.
31. Mr. Wright currently owes over $30,000 in arrears. He has not been able to make a payment since April of 2018. Id.
32. Because of his unpaid child support, Defendants suspended Mr. Wright’s license on May 24, 2018. Id.; see also Ex. 2, Wright Driver Record.
33. Prior to suspending Mr. Wright’s license, FSD sent him a letter informing him that his license would be suspended if he did not either pay off his arrears or enter into a payment plan. Mr. Wright could not afford to pay off the arrears, so he called FSD to try to set up a payment plan. He was told that his only option was to pay his regular court-ordered payments of $509 per month. FSD did not offer Mr. Wright any option for making smaller payments to avoid license suspension. Ex. 1, Wright Decl.
34. Since Mr. Wright’s divorce from his most recent wife in April of 2018, there has been no one to help him care for his two younger children. As a result, he has been forced to cut back on his work hours so that he can take his kids to school and daycare and be available to pick them up at the end of the day. Id.
35. Mr. Wright has to drop off his four-year-old daughter around 8:00am and be back in Farmington by 3:00pm to pick up the kids from school. Because the drive to St. Louis is an hour-and-a-half long, Mr. Wright only has about four hours each day when he is actually able to be working. He also is at a disadvantage because most of the jobs in his field begin around 6:00am, but he is not available to start any jobs until 9:30am at the earliest. Id.
36. When he was married and able to work more hours while his wife cared for the children, Mr. Wright worked for a union and earned about $40,000 per year. Now that he works
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fewer hours, he is self-employed and his income has been reduced to about $20,000 to $30,000 per year. This income change impacted Mr. Wright’s ability to make payments on his arrears, and he has not been able to make a payment since his divorce. Id.
37. All of Mr. Wright’s income goes toward his and his children’s living expenses. He has to pay about $400 per month for daycare, $550 in rent, and $200 in utilities. He also spends about $500 per month on groceries and about $600–$800 on gas and various needs for the children. Mr. Wright does not receive any support from his younger children’s mother. Often, Mr. Wright’s expenses exceed his income. For this reason, he has no savings and is not able to save any money. Id.
38. Mr. Wright had no choice but to continue driving once his license was suspended. He is a self-employed contractor who does painting and dry-walling jobs in St. Louis, an hourand-a-half drive from his home in Farmington. He has to haul all his painting and dry-walling equipment with him to jobs, including large items such as scaffolding, ladders, and benches. Id.
39. Mr. Wright also needs to drive to carry out his many childcare responsibilities. His four-year-old daughter’s daycare is ten miles from their house. His children’s doctors are a 40minute drive away, and the nearest grocery store is ten miles away. Mr. Wright and his children live outside the city of Farmington and must drive at least ten miles into town whenever they need anything. Mr. Wright’s nine-year-old son plays for a travel football and soccer team that Mr. Wright helps coach. There is no one else available to drive the boy to and from practices, and the games are usually about an hour’s drive from Farmington. Id.
40. Driving on a suspended license presents a significant risk for Mr. Wright. If he is caught, he could face criminal charges. MO Rev. Stat. § 302.321; see also Ex. 1, Wright Decl.
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41. Mr. Wright has a Class D felony on his record from 2008 for criminal nonpayment of child support.3 He has never been charged with any other crime. There is a warrant out for his arrest for his criminal nonpayment. If he is ever pulled over, he will likely be arrested. This is a terrifying prospect because if Mr. Wright is jailed, there will be no one available to care for his two young children, since their mother is currently in jail and struggles with a drug addiction. Ex. 1, Wright Decl.
42. Mr. Wright tried to work with the St. Charles County prosecutor to have the warrant lifted, but he was told that he would have to pay $3,600 just to get the warrant lifted. He cannot possibly afford to pay that amount. Id.
B. Camese Bedford 43. Camese Bedford is a 31-year-old resident of St. Louis, Missouri. He is a veteran of the United States Navy and served in the Second Gulf War. Ex. 3, Bedford Decl. 44. Mr. Bedford currently owes at least $2,851 in child support arrears. 45. Mr. Bedford found out around August of 2017 that his driver’s license was suspended because he had failed to pay child support for his six-year-old daughter, who lives with Mr. Bedford’s ex-wife. His license was suspended on February 25, 2017, but he does not recall ever receiving a suspension notice in the mail. Ex. 4, Bedford Driver Record; Ex. 3, Bedford Decl.
3 Under MO Rev. Stat. section 568.040(5), “[t]he offense of criminal nonsupport is a class A misdemeanor, unless the total arrearage is in excess of an aggregate of twelve monthly payments due under any order of support issued by any court of competent jurisdiction or any authorized administrative agency, in which case it is a class E felony.” Mr. Wright was charged with a class D felony because his offense of nonsupport with a total arrearage in excess of an aggregate of twelve monthly payments predated the Missouri legislature’s downgrading of the offense from a class D to a class E felony, which became effective on January 1, 2017. Crimes and Offenses— Rules and Regulations, 2014 Mo. Legis. Serv. S.B. 491 (Vernon’s) (West’s No. 9).
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46. Until that time, Mr. Bedford had not realized that he was supposed to be making child support payments. He found out when he received a letter informing him that there was a warrant out for his arrest because of nonpayment of child support. When he called the number provided, he was informed that he was supposed to be paying $278 per month and that he owed at least $2,500 in arrears. He also found out that as a result of his nonpayment, he had been charged with a class A misdemeanor. Id.
47. Mr. Bedford had not realized that he was supposed to be making child support payments because the order was made as a default judgment against him when he did not attend his divorce proceedings. He did not attend because he was still hoping that he and his then-wife could work out their differences and avoid divorce. Id.
48. Mr. Bedford was told that his license would not be reinstated until he paid off all his arrears. Id.
49. Mr. Bedford is indigent and cannot afford to pay off his arrears. He cannot even afford his everyday necessities. He is currently unemployed, and his only income is the $140 he receives monthly in disability benefits, which barely covers half his rent ($278 per month), let alone his utilities ($50 per month), phone bill ($86 per month), and other household expenses such as food and supplies ($120 per month). In fact, Mr. Bedford is often hungry because he cannot afford to feed himself properly. Id.
50. Mr. Bedford’s monthly child support obligation was reduced in January of 2019 to $194, which includes a payment toward his arrears. He made his payment in February of 2019, but at his current income level, he will not be able to make regular payments going forward. Id.
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51. Mr. Bedford’s last steady job was as an apprentice gardener with a Veterans Affairs medical facility. He started working there in 2017, but in June of 2018, he was involved in a workrelated car accident and had to stop working due to his injuries. Id.
52. Mr. Bedford also used to receive $1,097 per month from the VA, but the VA stopped these payments in December of 2018 when they realized that he was no longer married. Mr. Bedford has filed a correction of his marital status, but he does not know whether or when he will receive support from the VA again. Id.
53. Currently, because he is unemployed and no longer receives support from the VA, Mr. Bedford’s only income is the $140 in disability that he receives for a medical condition he suffered as a result of his navy service. Id.
54. Mr. Bedford’s lack of a valid driver’s license severely limits his job prospects, which are already limited due to a shoulder injury that prevents him from lifting heavy loads. Id.
55. Mr. Bedford can only take jobs within walking distance of his home because he cannot drive and cannot always afford bus fare. He worked at Family Dollar for a short time recently, but he was only able to keep the job for about three weeks because he could not afford bus fare to get there every day reliably. Id.
56. Walking is also difficult for Mr. Bedford. He has a skin condition on his feet that started during his navy service. It is painful and makes it uncomfortable for him to walk long distances. Id.
57. Mr. Bedford has experienced homelessness in the past, and with his income severely affected by his driver’s license suspension, he worries that he will soon become homeless again. Id.
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58. Mr. Bedford does not own a car, but he was planning to purchase one until he found out his license was suspended. If his license were not suspended, he would rent or lease a car to go to work and to see his daughter regularly. Id.
59. Not being able to drive makes it very difficult for Mr. Bedford to see his six-yearold daughter. Under his new child support agreement, he is entitled to overnight visitation with his daughter every weekend. But most weekends, Mr. Bedford’s inability to drive makes seeing his daughter impossible. Id.
60. Mr. Bedford’s daughter lives with her mother, about a 40-minute drive from Mr. Bedford’s home. By bus, the trip takes two hours. Often, Mr. Bedford is unable to pick his daughter up for their visits because he cannot afford bus fare. Additionally, the buses run less often and on a shorter schedule on the weekends, and Mr. Bedford worries that it is too cold outside in the winter for his young daughter to be waiting at the bus stop with him for long periods of time. Id.
61. Due to his transportation challenges, Mr. Bedford has not seen his daughter at all for about a month. Most of their communication is over the phone. Id.
62. Being a father to his six-year-old daughter means everything to Mr. Bedford. He is extremely concerned about the effect that his physical absence has on her wellbeing and her future. He believes that if he is not reliably present in her life, she could end up being a statistic. Id.
63. Mr. Bedford believes that his daughter is depressed as a result of his inability to spend time with her. She has told him that she thinks she is going to have to get a new daddy even though she does not want a new one. Id.
C. Ashley (Edison) Gildehaus
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64. Plaintiff Ashley (Edison) Gildehaus is a 35-year-old resident of Salem, Missouri. Ex. 5, Gildehaus Decl.
65. Mr. Gildehaus’s driver’s license was suspended on April 7, 2018, and remains suspended because he owes approximately $14,000 in child support arrears and cannot afford to pay off the debt. Id.; Ex. 6, Gildehaus Driver Record.
66. At the time of his divorce in 2011, Mr. Gildehaus was working as a mechanic earning about $450 to $600 a week. He was originally ordered to pay $306 per month in child support for his then-four-year-old son. Ex. 5, Gildehaus Decl.
67. In 2012, Mr. Gildehaus moved to North Dakota and began earning about $120,000 per year working on an oil field. In early 2014, Mr. Gildehaus moved back to Missouri but continued working in North Dakota. Id.
68. Around that same time, Mr. Gildehaus entered mediation with his ex-wife (his son’s mother) to renegotiate their parenting plan. The mediator advised Mr. Gildehaus that if the matter ended up before a judge, it would reflect poorly on Mr. Gildehaus that he was still working outof-state. The mediation therefore concluded in August of 2015 with an agreement that Mr. Gildehaus’s visitation would be reduced (from every-other weekend to one weekend per month with 15 days’ notice) and that his child support payments would increase (from $306 per month to $630 per month). Id.
69. In September of 2015, approximately one month after the mediation concluded, Mr. Gildehaus was laid off. He was not able to find any work for six months. Id.
70. The mediation agreement that Mr. Gildehaus reached with his ex-wife in August of 2015 did not come before a judge for approval until February of 2017. At that time, the judge ordered that the increased child support amount of $630 would apply all the way back to August
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of 2015, when the agreement was made. Mr. Gildehaus had been paying $306 during those approximately 18 months, so from the date of the judge’s order, he owed an additional $324 for every month since August of 2015 — approximately $6,000. Id.
71. Mr. Gildehaus could not pay the approximately $6,000 that he owed, and he fell behind on his child support payments. Id.
72. Sometime in the spring of 2018, Mr. Gildehaus received a notice that his driver’s license had been suspended because of unpaid child support. He does not recall receiving a notice before the suspension took effect. Id.
73. Mr. Gildehaus has been through the process of getting a stay on his driver’s license suspension approximately six times. The process is long and difficult. He has spent up to five hours on hold with FSD in the course of trying to request a stay. Often, the person on the line is unhelpful. Id.
74. Mr. Gildehaus has been told that the only way to get a stay is to make his full monthly payment amount — $630 — plus an additional $50 toward his arrears, for a total of $680. When FSD sends the payment agreement, Mr. Gildehaus has to return it with the full payment amount within the specified timeline. Several times he was unable to come up with the full $680 in ten days, and he had to start the whole process over again. Id.
75. As soon as Mr. Gildehaus misses a monthly payment — that is, any time he is unable to pay the full $680 in a given month — the stay is taken away. One FSD employee told him that it would be easier for him to keep up with the payments if he made them online. When Mr. Gildehaus told the employee that submitting a payment online or over the phone incurs an additional charge, she admitted she had not known that. Id.
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76. One time, the process of getting a stay took three months, even though Mr. Gildehaus was calling and following up on the status as much as he could. Another time, it took six months. Id.
77. Mr. Gildehaus has had five different stays since his license was suspended in April of 2018, and he is currently waiting on a sixth. Id.
78. Mr. Gildehaus lost his commercial driver’s license (CDL) as a result of his driver’s license suspension for unpaid child support. Id.
79. At the time that Mr. Gildehaus was notified that his license was suspended, he was in the process of renewing his medical card for his CDL. He had received a notice that his medical card was not current and that he had 60 days to renew it before he would lose his CDL. He went and got the physical examination for a new medical card, but when he went to the license bureau to turn in his medical card, they would not accept it because his driver’s license was suspended. By the time Mr. Gildehaus was finally able to get a stay on his suspension, the 60 days had passed, and he had lost his CDL. Now he cannot get a CDL without retaking the written test and road test, which would cost a total of almost $200. Even if Mr. Gildehaus had a CDL (and even if his driver’s license suspension were stayed), many companies will not hire him as a driver simply because he has a suspension on his driver record. Id.
80. Mr. Gildehaus misses out on high-paying job opportunities because he does not have a CDL and because he has a suspension on his driver record. He missed out on a job on a Texas oil rig that payed $100,000 per year for two-weeks-on/two-weeks-off work because even though he had a stay at the time, his CDL was not active, and the company told him that even if his CDL had been active, they could not hire him because of the suspension on his record. A
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second oil rig company also told Mr. Gildehaus that their insurance would not allow them to hire drivers with any kind of suspension on their records. Id.
81. Not having a CDL also means that Mr. Gildehaus cannot pick up extra work driving locally, and he has had to pass up on some opportunities that would have earned him much-needed additional income to care for his family and pay his child support. Id.
82. Mr. Gildehaus is currently working for Superior Automotive and Equipment. He started there in or around April of 2019, and he makes about $340 to $350 per week. Id.
83. Mr. Gildehaus has to drive for his work. He works in St. Clair, which is over 70 miles from his home in Salem. Every day he goes to work to provide for his family, and he worries that he might not be coming home because he is driving on a suspended license and could go to jail. Id.
84. Mr. Gildehaus earns about $340–$350 per week, and his wife makes about $40,000 per year, pre-tax. They have two small children, ages four and seven. The couple’s expenses exceed their collective net income. Their house payment is $1,020 per month. Their car payment is $450 per month. They have to spend up to $200 a week on daycare, $100 a week on food, and $180 a week on gas because they both have long commutes for work. They also spend $250 a month on utilities, $300 on their phones, $221 a month for auto insurance, $175 a month on home insurance, and $1,500 per year on property taxes. Id.
85. Mr. Gildehaus struggles to support his wife and their two small children. Sometimes all he can afford to feed them is ramen. Id.
86. Mr. Gildehaus’s child support debt has hurt his credit, and it has also put his family in serious danger of losing their house. The house was purchased on a five-year owner finance note. No one will give Mr. Gildehaus a loan because he has almost $14,000 in child support debt,
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and lenders know that the state can throw him in jail for unpaid child support or put a lien on the property to collect. Mr. Gildehaus cannot refinance his house without a loan, and if he does not refinance by October of 2019, the family will lose the house. He has already put $80,000 into the house. Id.
87. The stress of barely scraping by and barely being able to provide for his family has caused Mr. Gildehaus to experience depression. He sometimes contemplates suicide. He feels like he is never going to get out of this situation, and he is afraid that he is going to lose his family’s home. Id.
D. Lisa Mancini 88. Plaintiff Lisa Mancini is a 47-year-old resident of Joplin, Missouri. Ex. 7, Mancini Decl. 89. Ms. Mancini’s driver’s license was suspended on March 16, 2018, because she owes approximately $21,072 in child support to her first husband, who was awarded full custody of their son, now 20 years old, in 2014. Id.; Ex. 8, Mancini Driver Record. 90. Ms. Mancini is currently unemployed and indigent. She is a single mother to her four younger children, ages 15, 12, 8, and 4, and she is their sole provider. Ex. 7, Mancini Decl. 91. Ms. Mancini was married to her first husband from about 1992 to 2002. They had one son together, born in 1999. She married her second husband in 2003 and had three children with him, two daughters, born in 2003 and 2007, and a son, born in 2011. Ms. Mancini also has a fifth child born in 2014. Id. 92. Ms. Mancini’s divorce from her first husband was initially friendly. They were on good terms and shared fifty-fifty custody of their son. Ms. Mancini paid all her son’s expenses and did not receive any financial support from her first husband. Id.
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93. Ms. Mancini’s second marriage began in 2003. She and her husband both had good jobs. Ms. Manicini worked at a small college in St. Louis, earning around $140,000 to $150,000 per year, and her husband also had a six-figure salary. Id.
94. Around October of 2006, Ms. Mancini’s second husband quit his corporate job and his behavior became increasingly unreliable, erratic, and violent. On June 13, 2011, he kicked Ms. Mancini and the children out of the house. Id.
95. As a result of her second husband’s harassment campaign and public embarrassment of her, Ms. Mancini lost her job at the college in August of 2011. She began working for a different school in February of 2012, but she lost that job about seven months later for the same reason. Id.
96. During the turmoil of her separation from her second husband, Ms. Mancini asked her first husband to take her oldest son, then around 14 years old, to live with him so that he would be removed from the situation. Her once-friendly relationship with her first husband then began to sour, and he filed for full custody of their son in May of 2013. Id.
97. Ms. Mancini’s court date with her first husband over custody of her oldest son was in August of 2014. She was not able to afford a lawyer because she did not have a job. Her first husband’s case against her was strengthened by the complications of her situation with her second husband — and the judge refused to allow her to explain the circumstances. Although her 14year-old son desperately wanted to live with her, he was not permitted to testify in court. Ms. Mancini’s first husband was awarded full custody. Id.
98. The judge ordered Ms. Mancini to pay child support backdated to the date when her first husband originally filed for full custody, May of 2013. From the day she lost custody of her son, Ms. Mancini already owed $5,000 in arrears. Her child support payments going forward
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from that date were $360 per month. With the arrears payments factored in, she owed $600 per month in child support. She was also obligated to pay for half of her son’s medical and extracurricular expenses going forward. Id.
99. In February of 2015, Ms. Mancini obtained a job with a community college in Joplin with a salary of $75,000. She began making her $600 monthly child support payments immediately. Id.
100. Around June of 2016, the IRS garnished Ms. Mancini’s income to pay her second husband’s taxes because she was still legally married to him and they were unable to locate him. Ms. Mancini was forced to file for bankruptcy. Around that same time, she lost her job, as the college was forced to cut costs (it has since closed). Id.
101. Ms. Mancini’s first husband and their son moved to Florida in August of 2016. Their son graduated from high school in May of 2017 and did not attend college, so Ms. Mancini’s child support obligations should have terminated at that time, but they have continued. Id.
102. In the spring of 2018, Ms. Mancini received a notice that her driver’s license was going to be suspended unless she paid her child support. Shortly before that time, FSD had collected $5,000 from her tax return. When Ms. Mancini called to ask why her license was being suspended even after the $5,000 had been taken, she was told that that money did not count. Ms. Mancini was offered a payment plan, but she did not have enough money to make any payments at that time, and her license was suspended on March 16. Id.; Ex. 8, Mancini Driver Record.
103. In July of 2018, Ms. Mancini was able to start a new job at a nonprofit in Joplin earning about $50,000 per year. Ex. 7, Mancini Decl.
104. Around December of 2018, Ms. Mancini was pulled over and charged with driving on a suspended license. Id.
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105. In January of 2019, having just made a payment on her child support, Ms. Mancini requested that a stay be placed on her driver’s license suspension. She was told that she could have a stay. Id.
106. In February of 2019, Ms. Mancini’s’ supervisor found out about her driving on a suspended license court date and questioned her about it. Ms. Mancini told him that her license had been suspended but that she would soon be getting a stay on the suspension. He asked her to provide proof of the stay when she received it. Id.
107. Ms. Mancini then called FSD to ask about the status of her stay. She was told that she would need to make another payment before the stay would issue. She made another payment, and still she heard nothing about a stay. Meanwhile, Ms. Mancini’s employer became frustrated when she could not produce proof of a stay on her suspended license, and Ms. Mancini lost her job. Id.
108. Ms. Mancini currently has no regular income. She is trying to earn some money doing freelance work, but so far nothing has come in yet. She has maxed out her unemployment benefits for this year, so she is not currently receiving unemployment. She does not have any family members providing financial support to her and her children, and she does not receive any child support from any of her children’s fathers. Id.
109. Ms. Mancini’s expenses far exceed her current income. She pays $750 per month for the home she shares with her four younger children. Utilities total about $450 per month, and Ms. Mancini spends about $900 per month on food for her growing children, two of whom are teenagers. She also has to pay $190 per week when her youngest child needs childcare. Ms. Mancini owns a car, and her car insurance payments increased when her license was suspended, now costing her about $120 per month. Gas usually costs her about $300 per month. Id.
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110. Ms. Manini needs to drive. She has four children in her care, all in different schools and with different extracurricular and athletic commitments. The farthest of her children’s schools is about eight miles from home. The family lives in a rural area with no reliable public transportation. The grocery store is four miles away. The children’s doctors are about 12 to 15 miles away. Ms. Mancini’s children are very athletic, and the family travels almost every weekend to various sporting events, often outside the state. These trips are usually about an hour to twoand-a-half hours one-way. Ms. Mancini also needs to be able to drive to search for employment. Id.
111. Getting pulled over while driving on a suspended license is a constant fear for Ms. Mancini. She worries about getting charged a fine that she cannot afford or even landing in jail, leaving no one to care for her children. Id. III. Missouri’s Family Support Division Traps Impoverished Parents in a Cycle of
Poverty A. FSD Does Not Guarantee that Monthly Child Support Payments Will Be
Affordable Based on Ability to Pay 112. The Department of Social Services’ current rules regarding downward modifications of child support orders do not adequately ensure that parents will not be obligated to make monthly child support payments that they cannot afford to pay. 113. Many Missouri parents therefore have monthly child support payments that they are unable to afford. Ex. 9, Lummus Decl. 114. The Department of Social Services regulations require FSD to review a child support order at the request of either parent “once every thirty-six (36) months from the date the order was established, last reviewed or modified, or the date a review terminated.” Mo. Code Regs. Ann. tit. 13, § 30-5.020(2)(E) (2019).
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115. “A review may be conducted earlier than thirty-six (36) months at the request of a parent, or the division in an AFDC or Medicaid case, if . . . The requesting party submits information that shows, or a sworn statement that alleges, there has been a fifty percent (50%) or more change in income of either party to the order, and the division determines that the circumstances that caused the change have existed for at least three (3) months, and that it is reasonably likely they will remain unchanged for another six (6) months or longer.” Mo. Code Regs. Ann. tit. 13, § 30-5.020(2)(E)(3) (2019).
116. Parents are not able to obtain downward modifications to their monthly child support orders less than three years after the order was entered or last modified unless they can show that they have experienced an income reduction of at least 50 percent. Id.; see also Ex. 9, Lummus Decl.
117. A parent seeking a downward modification must also demonstrate that their income reduction of at least 50 percent has existed for at least three months. Mo. Code Regs. Ann. tit. 13, § 30-5.020(2)(E)(3) (2019); see also Ex. 9, Lummus Decl.
118. Finally, a parent seeking a downward modification must somehow demonstrate that the income reduction of at least 50 percent will continue to exist for at least an additional six months. Mo. Code Regs. Ann. tit. 13, § 30-5.020(2)(E)(3) (2019); see also Ex. 9, Lummus Decl.
119. If “[i]t has been less than thirty-six (36) months since the entry date of the support order or most recent modification, or last completed review, whichever is later, or it has been less than thirty-six (36) months since a review or modification action was terminated,” FSD may deny a request for a child support order modification unless the parent making the request demonstrates (1) an income reduction of at least 50 percent, (2) that has existed for at least three months, and
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(3) will continue to exist for at least an additional six months. Mo. Code Regs. Ann. tit. 13, § 305.020(6)(A)(2) (2019).
120. FSD routinely denies requests for downward modification of child support orders on the basis that the orders are not yet three years old. Id.
121. A parent who cannot demonstrate an income reduction of at least 50 percent, or whose income reduction is not at least three months old, or who cannot show that the income reduction will last for at least six more months, or whose child support order is less than three years old, will not be able to seek modification of his or her child support order.
122. Missouri parents who do not satisfy all these criteria cannot obtain modifications of their child support orders, no matter how drastically their financial circumstances may have changed outside the narrow confines of the rules.
123. Even when the three-year wait is satisfied, FSD can take up to a year to process an attorney’s request for modification. Ex. 9, Lummus Decl.
124. FSD also will often arbitrarily upward modify an order without any contact or communication with the parent or attorney. Id.
125. Therefore, Defendants do not ensure that all child support orders are affordable for parents.
B. Defendants Suspend the Licenses of Non-Custodial Parents Who Fail to Pay Child Support, Even Those Who Are Unable to Pay
126. Under MO Rev. Stat. § 454.1003.1(1), the FSD director has the authority to issue an order suspending the driver’s license of any person who “is not making child support payments in accordance with a support order and owes an arrearage in an amount greater than or equal to three months[’] support payments or two thousand five hundred dollars, whichever is less, as of the date of service of a notice of intent to suspend such license.”
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127. In cases in which the custodial parent is receiving some sort of assistance from the Office of Child Support Enforcement, which may include establishing and enforcing a child support order (“IV-D cases”), the FSD director has the authority to issue a notice of intent to suspend a license or to request that a court issue such a notice. MO Rev. Stat. § 454.1003.2.
128. The notice of intent to suspend states that the individual’s license “shall be suspended sixty days after service unless, within such time,” the person: “(1) Pays the entire arrearage stated in the notice; (2) Enters into and complies with a payment plan approved by the court or the division; or (3) Requests a hearing before the court or the director.” MO Rev. Stat. § 454.1003.3.
129. Parents who cannot afford to make their child support payments cannot avail themselves of the first option for avoiding suspension because, under 454.1003.1(1), the total arrearage is at least three months’ payments or $2,500 — both minimums, and both insurmountable costs for those who are not even able to make their monthly payments.
130. The payment plan referenced in the second option for avoiding suspension is not guaranteed to be affordable for the individual, but rather obligates the individual simply to make their regular child support payments. FSD’s instructions for issuing a Standard Payment Agreement (Form CSE-771) direct child support specialists to “Enter the amount and the payment frequency of the [non-custodial parent]’s current support obligation” in the form field specifying how much the parent is agreeing to pay (emphasis added). Indeed, when Mr. Wright called FSD to inquire about the payment agreement option, he was told that the only monthly payment amount that would avoid suspension was his regular court-ordered amount of $509, which he is unable to afford. Ex. 1, Wright Decl. A reduced monthly child support payment is only available when a parent is both unable to pay his or her current child support obligation and either self-employed or
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unemployed. See Ex. 10, License Suspension Payment Agreement Flowchart. And even then, FSD instructs that the monthly payment amount “should not be less than 50 percent of the current support amount” except “under extreme circumstances” and at the child support specialist’s discretion.
131. The final option for avoiding suspension is to request a hearing before the court or director. But for parents who are facing license suspension because of past-due child support, the only issues that may be addressed in this hearing are whether the parent is the correct person; whether the amount of the parent’s past-due support is greater than or equal to three months of support payments or $2,500, whichever is less, by the date of service of the notice; and whether the parent entered into a payment agreement. MO. Rev. Stat. § 454.1005.4. That is, the hearing specifically precludes any opportunity for an individual to contest suspension based on inability to make child support payments.
132. Administrative law judges do not allow any testimony regarding inability to pay, financial hardship, disabilities, homelessness, or any other mitigating circumstances other than a mistake having been made in the financial calculation at the hearing. Ex. 9, Lummus Decl. Lawyers who try to introduce this type of evidence are routinely informed that it is not permitted. Id.
133. Defendants therefore suspend the driver’s licenses of non-custodial parents who fail to pay child support once their arrears reach three months’ worth or $2,500, without any exception for those whose failure to pay was non-willful and caused only by inability to pay.
C. Once Defendants Suspend a Parent’s License for Unpaid Child Support, It Is Very Difficult to Obtain Reinstatement, even if the Parent Manages to Start Making Regular Payments
134. Once Defendants suspend a parent’s license for unpaid child support, it is very difficult to obtain reinstatement, even if the parent manages to start making regular payments.
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135. Missouri law does not mandate reinstatement of a parent’s license unless and until “a court or the division determines that an arrearage has been paid in full.” MO Rev Stat § 454.1013.1.
136. FSD ostensibly offers stays on suspensions to parents who begin to make timely payments according to their current child support order and toward any arrears owed. Ex. 9, Lummus Decl. But for parents who cannot afford their regular payments, the stay option is of little use.
137. FSD itself is statutorily precluded from issuing a stay based solely “upon a showing that a suspension or continued suspension of a license would create a significant hardship” for the parent; only a court has the authority to do so. MO. Rev. Stat. § 454.1010.3.
138. Therefore, FSD has the authority to order a driver’s license suspension without first determining whether the suspension would create a significant hardship, and it orders such suspensions even though it has no independent authority to relieve the hardship through a stay.
139. Moreover, the process for obtaining a stay is onerous, opaque, and inconsistent. Lawyers attempting to obtain stays on suspensions for their clients who owe unpaid child support often do not receive replies when they submit requests to FSD, and FSD agents often insist that they are not familiar with the stay process when lawyers place phone calls to check on the status of their requests. Ex. 9, Lummus Decl. Thus, once a license is suspended for unpaid child support, obtaining a stay on the suspension is not guaranteed even for a parent who manages to start scraping together regular payments. The success of the request hangs on the person who happens to answer the phone that day at FSD. Id.
140. Even if a parent does manage to obtain a stay on the suspension, FSD will remove the stay immediately if the payments lapse or lag, which often happens when parents are struggling
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enough financially that they fell behind in the first instance. Id. On information and belief, there is no notice sent to parents when a stay is removed. Id.
141. Once a parent manages to secure a job and begin paying regular support, the path toward driver’s license reinstatement through FSD can be impossible to navigate with or without an attorney. Id.
142. Although FSD claims to have a reinstatement process, it is, in practice, entirely without clear process, clear guidelines, or communication. The process is generally a formality without real function or relief. Id.
143. Even experienced attorneys attempting to navigate the reinstatement process have no clear idea as to how it is supposed to work. Id.
144. Moreover, FSD refuses to consistently copy an attorney of record on any correspondence or any centralized intake point for addressing this issue. Id.
145. Attorneys make in-person visits to the child support offices, file certified petitions with official offices in Jefferson City, request hearings they know are fruitless, and spend countless hours on the phone, fax, and email attempting to navigate this process to no avail. Id.
146. It is practically impossible for a pro se petitioner to navigate the reinstatement process. Id.
147. Most suspensions for nonpayment of child support last years or even decades due to the cycle of poverty as well as the lack of any clear path to reinstating a driver’s license even after payments are being made. Id.
148. Before a driver’s license suspended for unpaid child support can be reinstated, the parent must pay a reinstatement fee of $20. MO Rev. Stat. § 454.1010.11.
D. License Suspension Drives Parents Further into Poverty and Invites Further Infractions
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149. Usually, driver’s license suspension is the first ramification that noncustodial parents face for falling behind on their payments. Ex. 9, Lummus Decl. Once parents lose their driver’s licenses, they are more likely to become ensnared in the criminal courts. Id.
150. These suspensions leave effects that are widespread and devastating, perpetuating a cycle of poverty and despair and further breaking apart vulnerable families. Id.
151. People whose driver’s licenses are suspended because of unpaid child support are not eligible for limited or restricted driving privileges.
152. Indigent parents with suspended licenses face an impossible choice: If they stop driving, they may lose their jobs, be unable to visit or help care for their children, not be able to keep appointments with doctors or service providers, miss court appearances, and innumerable other potential consequences. If they keep driving, they face the risk of being caught driving on a suspended license.
i. Living Without a Driver’s License Is Extremely Difficult, Especially in a State Like Missouri
153. Living in Missouri without being able to drive legally is extremely difficult. 154. FSD’s punitive suspension scheme imposes significant hardship on indigent noncustodial parents and their families. 155. Once parents’ licenses are suspended, their socioeconomic circumstances devolve. Ex. 9, Lummus Decl. 156. Many parents cannot make their child support payments because doing so would leave them unable to pay for basic essentials like food and shelter. 157. Many parents cannot make their child support payments because they have been forced into extreme financial hardship by health care expenses, job loss, or divorce.
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158. Once parents have reached the point at which their arrears are high enough to trigger suspension orders, the amounts they need to pay to get their licenses reinstated are astronomically high for people already scraping by.
159. Not having a valid driver’s license bars people from employment opportunities. “Not all jobs require a driver’s license, particularly those that pay very low wages. But having one is a very common requirement for the sorts of job that can actually lift people out of poverty.” Alana Semuels, No Driver’s License, No Job, The Atlantic (June 15, 2016).4
160. Indeed, a rigorous study of New Jersey drivers found that 42% of drivers lost their jobs after their driver’s licenses were suspended. Driver’s License Suspensions, Impacts and Fairness Study, at 56.5
161. Of those drivers, 45% were unable to find new employment. Id. 162. Of those that were able to find another job, 88% reported a decrease in income. Id. 163. This trend holds true in Missouri, where parents with suspended licenses are not able to drive to work or apply for many jobs. Ex. 9, Lummus Decl. 164. It is extremely difficult to get from place to place in Missouri without a car. 165. There are few options for public transportation, especially in the rural parts of the state. 166. Parents who cannot drive are cut off from any job opportunities in neighboring counties, including St. Charles, Jefferson County, Franklin County, and parts of Illinois. Ex. 9, Lummus Decl.
4 Available at https://www.theatlantic.com/business/archive/2016/06/no-drivers-license-nojob/486653/. 5 Available at https://www.nj.gov/transportation/refdata/research/reports/FHWA-NJ-2007-020V1.pdf.
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167. Even if a parent is only traveling within the city of St. Louis, public transportation can add two additional travel hours one way (four hours per day). Id.
168. Missouri’s geography does not lend itself to supporting a mass public transportation system. See Missouri Commuters and Means of Transportation, Missouri Census Data Center (May 20, 2015) (“. . . Missouri simply does not have the same potential for the use of public transportation networks that the smaller, more urbanized states of the Northeast do. . .”).6
169. While Missouri’s most developed cities have their own public transportation systems, for those who live outside the big cities, there are only two services that provide transportation in rural Missouri: OATS Transit and SMTS. OATS picks its customers up at their homes. How to Ride OATS Transit, OATS Transit.7 However, to take advantage of this service, OATS customers have to call up to ten days in advance to schedule a ride. Id. And SMTS only provides medical transportation for people who need to get to medical appointments. See Services, SMTS Anyone Can Ride.8
170. The majority of Missourians drive to work. Missouri Commuters and Means of Transportation, Missouri Census Data Center (May 20, 2015).9 The 2017 American Community Survey reported that a Missourian’s average commute to work takes 23.6 minutes. See Means of Transportation To Work By Selected Categories of Workplace Geography, American Fact Finder U.S. Census Bureau.10
6 https://census.missouri.edu/missouri-commuters/ (last visited Aug. 30, 2019). 7 https://www.oatstransit.org/ride (last visited Aug. 30, 2019). 8 http://ridesmts.org/services/ (last visited Aug. 30, 2019). 9 https://census.missouri.edu/missouri-commuters/ (last visited Aug. 30, 2019). 10https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_5Y R_S0804&prodType=table (last visited Aug. 30, 2019).
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171. In many cases, FSD’s punitive suspension scheme forces parents with suspended licenses to choose between driving illegally and losing their jobs.
172. Once a parent’s livelihood disappears, eviction and homelessness soon follow. Ex. 9, Lummus Decl.
173. Because driving on a suspended license is a misdemeanor (and can be a felony on the fourth or subsequent offense), FSD’s suspension scheme creates a downward spiral from poverty to criminal culpability: unpaid child support leads to suspension, which often leads to the offense of driving without a valid license.
ii. Driving with a Suspended License Is a Misdemeanor Punishable with Fines and Jail Time
174. Under MO Rev. Stat. § 302.321.1, “A person commits the offense of driving while revoked if such person operates a motor vehicle on a highway when such person’s license or driving privilege has been cancelled, suspended, or revoked under the laws of this state or any other state and acts with criminal negligence with respect to knowledge of the fact that such person's driving privilege has been cancelled, suspended, or revoked.”
175. “Any person convicted of driving while revoked is guilty of a misdemeanor. A first violation of this section shall be punishable as a class D misdemeanor. A second or third violation of this section shall be punishable as a class A misdemeanor.” MO Rev. Stat. § 302.321.2.
176. A person who is caught driving on a suspended license and is convicted for the first time is guilty of a class D misdemeanor, which is punishable by a fine of up to $500. Id.; MO Rev. Stat. § 558.002.1(5).
177. A person who is caught driving on a suspended license and is convicted for the second or third time is guilty of a class A misdemeanor, which is punishable by a fine of up to $2,000 and up to one year in jail. MO Rev. Stat. §§ 302.321.2, 558.002.1(2), 558.011.1(6).
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178. A person who is caught driving on a suspended license and is convicted for the fourth or subsequent time can be guilty of a class E felony if the previous three offenses occurred within ten years of the most recent offense. MO Rev. Stat. § 302.321.2. A class E felony is punishable by a fine of up to $10,000 and a prison sentence of up to four years. MO Rev. Stat. §§ 558.002.1(1), 558.011.1(5).
179. The statute contains no exception for situations in which driving is a necessity. iii. Failure to Pay Child Support Is a Criminalized Offense in Itself
180. Noncustodial parents who cannot afford to make their child support payments are already criminalized under Missouri law. MO Rev. Stat. § 568.040.
181. Under MO Rev. Stat. § 568.040(1), “[A] parent commits the offense of nonsupport if such parent knowingly fails to provide adequate support which such parent is legally obligated to provide for his or her child or stepchild who is not otherwise emancipated by operation of law.” The statute contains no exception for parents whose failure to pay child support is due to inability to pay.
182. “The offense of criminal nonsupport is a class A misdemeanor, unless the total arrearage is in excess of an aggregate of twelve monthly payments due under any order of support issued by any court of competent jurisdiction or any authorized administrative agency, in which case it is a class E felony.” MO Rev. Stat. § 568.040(5).
183. A class A misdemeanor is punishable by a fine of up to $2,000 and up to one year in jail. MO Rev. Stat. §§ 558.002.1(2), 558.011.1(6).
184. A class E felony is punishable by a fine of up to $10,000 and a prison sentence of up to four years. MO Rev. Stat. §§ 558.002.1(1), 558.011.1(5).
185. When parents have criminal convictions for falling behind on child support payments, the courts and state agencies task them with finding employment and reliable
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transportation in addition to paying back any child support arrearages they owe — meanwhile, FSD hamstrings their ability to complete these tasks by suspending their driver’s licenses. Ex. 9, Lummus Decl.
186. Therefore, because nonpayment of child support itself is a criminal offense, even a felony in some cases, noncustodial parents who cannot afford their child support payments already face unavoidable criminal charges and fines, and driver’s license suspension only compounds this dangerous downward spiral into further poverty and further entanglement with the criminal justice system. IV. FSD’s Punitive Suspensions Violate Plaintiffs’ Equal Protection and Due Process
Rights 187. Defendants’ indefinite suspension of non-custodial parents’ driver’s licenses because of their inability to pay child support violates their constitutional rights under the Equal Protection and Due Process Clauses. A. Defendants’ Punitive Suspension Scheme Violates Equal Protection and
Substantive Due Process Because It Discriminates on the Basis of Wealth 188. Defendants suspend parents’ driver’s licenses as punishment for their failure to pay, and punishing people for failing to make payments that they cannot afford to pay is wealth-based discrimination. See, e.g., Bearden v. Georgia, 461 U.S. 660, 660 (1983) (holding that it discriminates on the basis of wealth to revoke probation because a probationer is unable to pay fines and restitution); see also Griffin v. Illinois, 351 U.S. 12, 18 (1956) (holding that it discriminates on the basis of wealth to deny access to an appeal solely because of inability to pay court costs); Tate v. Short, 401 U.S. 395, 395 (1971) (holding that it discriminates on the basis of wealth to jail a person for inability to pay a fine); Williams v. Illinois, 399 U.S. 235, 240–41 (1970) (holding that it discriminates on the basis of wealth to imprison a person beyond the maximum period fixed by statute solely because he cannot pay fines or court costs).
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189. Defendants suspend driver’s licenses without first determining whether the nonpayment was willful or whether the parent was simply too poor to pay.
190. Thus, FSD’s punitive suspension scheme inevitably results in individuals being punished for their inability to pay.
191. Punishing a person solely for his or her inability to pay constitutes wealth-based discrimination in violation of equal protection and due process.
192. FSD’s punitive suspension scheme is not rationally related to any legitimate government objective because suspending driver’s licenses impedes indigent parents from obtaining or maintaining employment in order to meet their financial obligations and also impedes their ability to participate actively in parenting their children.
193. Driver’s licenses are often essential in the pursuit of a livelihood, and their suspension threatens important interests of the people who hold them.
194. License suspension is counterproductive to FSD’s interests in collecting unpaid child support from indigent parents because it prevents such parents from working and can cost them additional expenses in the form of fines for driving on a suspended license.
195. For indigent parents, avoiding driver’s license suspension does not operate as an incentive to pay child support. Most people will do whatever it takes to make sure their children are cared for; if they owe enough unpaid child support that they are facing license suspension, it is only because they cannot afford to pay it. And when parents must choose between paying arrears and paying rent, buying medication, feeding their families, and other necessary expenses, they cannot prioritize arrears.
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196. For parents who cannot pay, coercing payment by license suspension is irrational and counterproductive; suspension makes it less likely — rather than more likely — that people will be able to pay child support.
197. The loss of a license often means the loss of reliable transportation to and from work, which makes parents less able to meet their child support obligations.
198. Suspending driver’s licenses — especially for people who are poor — causes unemployment and homelessness and thus exacerbates a cycle of poverty.
199. License suspension is also counterproductive to the best interests of the children of parents with unpaid child support because when they cannot drive, they cannot visit their children, drive them to school, drive them to the doctor, or otherwise engage in the everyday caretaking responsibilities of being a parent.
200. In many cases, the noncustodial parents’ resultant inability to participate in childcare responsibilities and visitation leads to a breakdown in family dynamics, as custodial parents begin to resent the noncustodial parents’ perceived failures and lack of reliability. Ex. 9, Lummus Decl. A custodial parent may even conclude that the noncustodial parent is not fit to be an involved parent due to their diminished income capacity and lack of mobility, which can significantly harm a noncustodial parent’s relationship with the children. Id. It is not uncommon for the custodial parent to deny visitation based on the non-custodial parent’s lack of transportation or dependency on public transportation. Id.
B. Defendants’ Punitive Suspension Scheme Violates Equal Protection Because It Discriminates on the Basis of Wealth Without Being Narrowly Tailored to a Compelling Government Interest
201. Although wealth-based classifications do not usually receive strict scrutiny, in this case, Defendants’ enforcement of failure-to-pay suspensions is subject to heightened scrutiny because of two factors laid out by the Supreme Court: first, indigent parents are completely unable
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to pay their arrears, and second, license suspension completely deprives them of their ability to drive legally. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 (1973). Therefore, because Defendants’ punitive suspensions are not narrowly tailored to the collection of child support or the best interests of children, they are unconstitutional.
202. Plaintiffs’ poverty renders them completely unable to pay off their arrears to reinstate their licenses. It is not the case that the cost of paying the debt is “great, but not insurmountable,” nor are Plaintiffs “persons with relatively less money on whom designated fines impose heavier burdens.” San Antonio, 411 U.S. at 21–22. Rather, Plaintiffs are completely unable to pay. Plaintiffs have not managed to pay off their arrears and get their licenses reinstated because they cannot do so without foregoing basic life necessities; that is, they are completely unable to pay the amount required.
203. FSD’s imposition of driver’s license suspensions against indigent parents like Plaintiffs constitutes an absolute deprivation of the ability to drive. Plaintiffs have no option that allows them to drive legally while their licenses are suspended, and their suspensions were the result of a complete inability to satisfy their child support obligations. Thus, this case is one in which poverty is subject to strict scrutiny.
204. Since this case falls into the exception in which poverty is subject to strict scrutiny, the FSD’s suspensions violate equal protection because they are not “narrowly tailored to serve a compelling government interest.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219 (1995).
205. For parents who are indigent, failure-to-pay suspensions are not even rationally related to the state interest of child support collection because they are actually counterproductive, causing parents to lose income.
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206. Nor are suspensions narrowly tailored, or even rationally related, to the goal of protecting the best interests of Missouri’s children, since license suspension makes noncustodial parents less available to their children and often directly impedes parent-child relationships.
C. Defendants’ Punitive Suspension Scheme Violates Substantive Due Process Because It Infringes on Plaintiffs’ Fundamental Right to Travel
207. Plaintiffs have a fundamental due process right to travel. See, e.g., Saenz v. Roe, 526 U.S. 489 (1999). Although there is no fundamental right to drive, the Supreme Court has guaranteed freedom of movement to people who are poor as well as to the rich. Allowing states to limit the movement of those who are indigent “would also introduce a caste system utterly incompatible with the spirit of our system of government.” Edwards v. People of State of California, 314 U.S. 160, 181 (1941) (Douglas, J., concurring).
208. While the Eighth Circuit has not ruled definitively on the issue, other circuits have specifically recognized a fundamental right to intrastate travel. See, e.g., King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971); see also Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002).
209. Because their licenses are suspended, Plaintiffs cannot travel on Missouri’s roadways without risking criminal consequences.
210. Plaintiffs’ suspensions are therefore an “actual barrier to intrastate movement.” Weems v. Little Rock Police Dept., 453 F.3d 1010, 1016 (8th Cir. 2006).
211. Plaintiffs Wright, Gildehaus, and Mancini live in rural areas where public transportation options are extremely limited. Ex. 1, Wright Decl.; Ex. 5, Gildehaus Decl.; Ex. 7, Mancini Decl.
212. Plaintiff Bedford must rely on the bus for transportation, and he is often unable to afford a bus pass. Ex. 3, Bedford Decl.
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213. Plaintiffs cannot afford to pay for taxis or other car services for daily commuting and living.
214. Defendants have suspended Plaintiffs’ licenses simply because they are unable to pay their debts and therefore have impeded their fundamental right to intrastate travel.
215. Because it implicates a fundamental liberty interest, Defendants’ suspension scheme must be narrowly tailored to achieve compelling state objectives.
216. Defendants’ suspension scheme is not limited in scope; it is a broad prohibition on all driving in all locations at all times in all circumstances for an indefinite period.
217. While the collection of child support is a significant state interest, suspending the driver’s licenses of parents who cannot pay is not narrowly tailored to collection. Indeed, it is counterproductive because it hampers Plaintiffs’ ability to make a living and pay their essential expenses, thus decreasing their ability to pay court debts.
D. Defendants’ Punitive Suspension Scheme Violates Equal Protection Because It Is Extraordinary Collection
218. When Defendants suspend parents’ driver’s licenses as a means of collecting unpaid child support, they are using their unique state powers to attempt to coerce parents into paying, thus violating parents’ Equal Protection rights under the doctrine of extraordinary collection.
219. The Equal Protection Clause ensures that individuals cannot be treated differently as debtors to the state than they would be treated as civil debtors, and parents’ ability to afford basic necessities and make a living must be protected. See James v. Strange, 407 U.S. 128 (1972).
220. Defendants are unlawfully enforcing a debt collection method not afforded to private creditors (the power to suspend driver’s licenses).
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221. Defendants’ “unduly harsh” treatment of parents too poor to pay child support ignores the “hopes of indigents for self-sufficiency and self-respect.” Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. 2010) (citing Strange, 407 U.S. at 135).
222. Missouri residents who owe private debts do not face driver’s license suspension to coerce them into paying. Defendants’ punitive driver’s license suspension scheme violates Equal Protection because it subjects indigent child support debtors to “more severe collection practices than the ordinary civil debtor.” Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir. 2005).
E. Defendants’ Punitive Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing or Provide Notice of Such a Hearing
223. A person’s driver’s license is recognized as a property interest that may not be taken away without due process of law. Bell v. Burson, 402 U.S. 535 (1971). Due process requires the state of Missouri to conduct pre-deprivation ability-to-pay hearings and to provide notice that such hearings are available.
224. The pre-deprivation hearing must contemplate ability to pay. Because Defendants suspend parents’ driver’s licenses due to their failure to pay (child support), a meaningful hearing in this context is one that determines whether the nonpayment was willful, since parents’ willfulness speaks directly to their liability for the failure to pay.
225. The ability-to-pay hearing must be available before suspension takes effect. The purpose of FSD’s punitive suspension scheme is to coerce payment and to punish, not to get dangerous drivers off the road. Therefore, there is no urgent safety need calling for immediate suspension, and Plaintiffs and others similarly situated are entitled to an ability-to-pay hearing prior to license suspension.
226. Missouri law does not currently guarantee or even allow a pre-deprivation abilityto-pay hearing for parents facing suspension due to unpaid child support. The only hearing that is
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available is one specifically limited to ensuring that no errors were made in the calculations. Ex. 9, Lummus Decl. Administrative law judges will not allow any testimony concerning inability to pay at these hearings. Id.
227. Due process also requires that all parents facing suspension for unpaid child support receive adequate notice that a pre-deprivation hearing is available and that they can raise inability to pay as a defense at that hearing.
228. Prior to suspending a parent’s driver’s license for unpaid child support, FSD does not provide any notice informing the parent of any right to an ability-to-pay hearing. In fact, parents are specifically informed that they cannot raise inability to pay as a defense.
229. A person whose driver’s license is suspended because of unpaid child support has no right to appeal the suspension. MO Rev. Stat. § 454.1008.3 (“The obligor may not appeal the suspension of a license pursuant to sections 454.1000 to 454.1025 pursuant to any other law, including, but not limited to, section 302.311. The exclusive procedure for appeal is provided in sections 454.1000 to 454.1025.”).
230. Moreover, FSD does not independently review the parent’s ability to pay before or after ordering the harsh punishment of suspension. Thus, Defendants suspend licenses without any consideration of ability to pay.
231. Because Missouri law does not require a pre-deprivation ability-to-pay hearing for parents facing driver’s license suspension for unpaid child support, there is a high risk that indigent parents will be deprived of their driver’s licenses for reasons directly attributable to their poverty.
Class Action Allegations 232. Named Plaintiffs Nathan Wright, Camese Bedford, Ashley Gildehaus, and Lisa Mancini bring this action, on behalf of themselves and all others similarly situated, to assert the claims alleged in this Amended Complaint on a common basis.
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233. A class action is a superior means, and the only practicable means, by which named Plaintiffs and unknown Class Members can challenge Defendants’ unlawful punitive suspension scheme.
234. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(l)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.
235. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
236. Plaintiffs propose a declaratory and injunctive class defined as: All individuals whose Missouri driver’s licenses are, or will be, suspended for failure to pay child support and whose reason for nonpayment was, or will be, inability to pay. I. Numerosity — Fed. R. Civ. P. 23(a)(1)
237. Class Members are so numerous as to make joinder impracticable. This is a statewide Class that includes all parents whose licenses are currently suspended because of their inability to pay child support as well as all parents who will suffer such suspension during the pendency of this lawsuit.
238. As of June 10, 2019, approximately 41,903 parents currently have suspensions for unpaid child support on their Missouri driver’s license. This number represents a snapshot of all driver’s licenses suspended for failure to pay past due support at one moment, as recorded in the Missouri Automated Child Support System (MACSS). The total fluctuates, but generally remains around 40,000.
239. In Missouri, nearly 40,000 driver’s license suspensions for unpaid child support are issued every year. In the first half of 2019 alone (January 1 to June 10), Defendants have issued 19,947 driver’s license suspensions for unpaid child support. In 2018, a total of 36,267 driver’s
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license suspensions were issued for unpaid child support. In 2017, the number was 37,741; in 2016, 38,405; and in 2015, 39,696.
240. In 2018 alone, Class counsel litigated the cases of 39 parents whose licenses were suspended due to their inability to make their child support payments. Moreover, Class counsel’s St. Louis office receives five to ten requests every month for assistance with this issue, and the office receives many more requests from affected parents throughout the state of Missouri. Ex. 9, Lummus Decl.
241. Named Plaintiffs’ inclusion of future Class Members in their Class definition also makes joinder impracticable. II. Commonality — Fed. R. Civ. P. 23(a)(2)
242. The relief sought is common to all Class Members, and common questions of law and fact exist as to all Class Members. Named Plaintiffs seek relief concerning whether FSD’s suspension scheme violates the rights of Class Members, and they seek relief mandating that Defendants end the scheme so that the constitutional rights of Class Members will be protected in the future.
243. These common legal and factual questions arise from one scheme: Defendants’ driver’s license suspensions based on inability to pay child support. The material requirements of the relevant statutes do not vary from Class Member to Class Member, and the resolution of these legal and factual issues will determine whether all Class Members are entitled to the relief they seek.
244. Among the most important, but not the only, common questions of fact are: • Whether FSD has a policy and practice of using driver’s license suspension to
coerce child support payments from non-custodial parents who are unable to pay;
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• Whether FSD has a policy and practice of suspending driver’s licenses without conducting meaningful inquiries into a person’s ability to pay before taking such action; and
• Whether FSD’s policy and practice of using driver’s license suspension to coerce child support payments is in fact counterproductive.
245. Among the most important, but not the only, common questions of law are:
• Whether fundamental principles of due process and equal protection require FSD to take into account a parent’s ability to pay before suspending a license for nonpayment of child support;
• Whether suspending a parent’s driver’s license solely because she or he cannot afford to make child support payments is lawful; and
• Whether a person is entitled to a meaningful inquiry into his or her present ability to pay child support before Defendants suspend his or her license for nonpayment.
III. Typicality — Fed. R. Civ. P. 23(a)(3) 246. Named Plaintiffs’ claims are typical of the other Class Members’ claims, and they
have the same interests in this case as all other Class Members. Each Class Member has had or will have his or her driver’s license suspended due to an inability to pay child support. The answer to whether Defendants’ punitive suspension scheme is unconstitutional will determine the claims of Named Plaintiffs and every other Class Member.
247. If Named Plaintiffs succeed in the claim that FSD’s policies and practices concerning driver’s license suspensions violate their constitutional rights, that ruling will likewise benefit every other Class Member. IV. Adequacy — Fed. R. Civ. P. 23(a)(4)
248. Named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class Members, who each have the same basic constitutional claims. They are members of the Class, and their interests coincide with, and are not antagonistic to, those of the other Class Members.
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249. There are no known conflicts of interest among Class Members, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ punitive suspension scheme.
250. Plaintiffs are represented by attorneys from Equal Justice Under Law and St. Francis Community Services, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law.
251. The combined efforts of Class counsel have so far included extensive investigation into Defendants’ suspension scheme, including interviewing attorneys in the region, statewide experts in the functioning of state and local courts, and national experts in constitutional law, law enforcement, judicial procedures, and criminal law.
252. Class counsel have a detailed understanding of local law and practices as they relate to federal constitutional requirements.
253. As a result, counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ scheme and with the relevant state and federal laws. The interests of the Class Members will be fairly and adequately protected by Named Plaintiffs and their attorneys. V. Rule 23(b)(2)
254. Class action status is appropriate because Defendants have acted or will act in the same unconstitutional manner with respect to all Class Members. Defendants enforce a punitive suspension scheme: indigent non-custodial parents who are unable to pay child support are punished with license suspension, which only renders them less able to pay.
255. The Class therefore seeks declaratory and injunctive relief to enjoin Defendants from ordering and enforcing these suspensions. Because the putative Class challenges Defendants’
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scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every Class Member, Rule 23(b)(2) certification is appropriate and necessary.
256. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each Class Member from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot order driver’s license suspensions for people who are unable to pay child support would provide relief to every Class Member. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
Claims for Relief Count One:
Violation of Equal Protection and Fundamental Fairness under Griffin v. Illinois and Bearden v. Georgia
257. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
258. Missouri’s statutory scheme authorizing Defendants to suspend parents’ driver’s licenses for unpaid child support violates equal protection and substantive due process because it discriminates on the basis of wealth in a way that is fundamentally unfair.
259. The Fourteenth Amendment’s Due Process Clause requires that Missouri maintain a standard of fundamental fairness in its justice system. The suspensions authorized by MO Rev. Stat. § 454.1003.1(1) punish people simply for being too poor to pay, which violates the principles of equal protection and due process because it amounts to discrimination on the basis of wealth.
260. MO Rev. Stat. § 454.1003.1(1) authorizes FSD to order driver’s license suspensions for non-custodial parents who are not making payments on their child support obligations and who owe arrears greater than or equal to three months’ payments or $2,500,
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whichever is less. The statute does not guarantee or even contemplate any exception for parents whose nonpayment was not willful.
261. MO Rev. Stat. § 454.1003.1(1) is therefore an ostensibly neutral law that nevertheless discriminates on the basis of wealth because it authorizes a penalty for failure to pay without any exception for those who are unable to pay.
Count Two: Violation of Equal Protection under San Antonio School District v. Rodriguez 262. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 263. Defendants’ wealth-based discrimination is subject to heightened scrutiny because indigent parents are completely unable to pay their arrears, and license suspension completely deprives them of their ability to drive legally. 264. Therefore, Defendants’ suspension scheme must be narrowly tailored to a compelling state interest to pass constitutional muster. 265. Defendants’ punitive suspensions are not narrowly tailored to the collection of child support because driver’s license suspensions make already-struggling parents less able to pay child support, as parents often suffer job loss, income reduction, eviction, and further criminal fines as a result of not being able to drive legally. 266. Defendants’ punitive suspensions are not narrowly tailored to the best interests of children because a parent with a suspended driver’s license is not only less able to earn money to pay child support, but also less able to participate in the lives of his or her children. Parents with suspended licenses have a more difficult time picking their children up for visitation, attending school functions, and generally participating in parenting responsibilities. This often leads to further disintegration of already-fragile family relationships, which directly harms children.
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267. Because Defendants’ suspension scheme is not narrowly tailored to any compelling government interest, it violates equal protection rights.
Count Three: Violation of Fundamental Right to Travel 268. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 269. Plaintiffs and others similarly situated have a fundamental right to travel. Because Class Members have no viable alternative to driving, Defendants’ suspension of their licenses implicates their rights to interstate and intrastate travel, and this suspension is not narrowly tailored to meet the state objective of child support collection.
Count Four: Violation of Equal Protection under James v. Strange 270. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 271. Plaintiffs’ equal protection rights are implicated when Defendants use their unique position as government actors to use debt collection methods that are not available to private creditors. By stripping Plaintiffs and others similarly situated of their driver’s licenses as a means of collection, Defendants are violating their constitutional rights under equal protection. 272. A state may not “impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.” James v. Strange, 407 U.S. 128, 131, 138 (1972). 273. Defendants’ “unduly harsh” treatment of those too poor to pay their child support ignores the “hopes of indigents for self-sufficiency and self-respect.” Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. 2010) (citing Strange, 407 U.S. at 135).
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Count Five: Violation of Procedural Due Process 274. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint. 275. Defendants violate procedural due process rights under the United States Constitution by suspending licenses without first considering whether nonpayment was willful and without providing adequate notice to parents facing suspension that they may raise inability to pay as a defense against the suspension action. 276. The statutory scheme that authorizes Defendants to suspend driver’s licenses for failure to pay child support violates procedural due process because it does not guarantee an ability-to-pay hearing or provide that notice of such a hearing be provided; in fact, it precludes any such ability-to-pay consideration. MO Rev. Stat. § 454.1005.4. 277. Plaintiffs and others similarly situated have protected property and liberty interests in their driver’s licenses and their ability to drive legally. 278. Parents are constitutionally entitled to a meaningful hearing (that is, an ability-topay hearing) and notice of that hearing before Defendants may suspend their driver’s licenses for failure to pay child support. 279. Missouri’s statutory scheme authorizes the deprivation of this property interest without adequate due process because it does not guarantee an ability-to-pay hearing for all parents facing suspension, and it does not mandate that all such parents be notified of their right to assert ability to pay as a defense.
Requested Relief WHEREFORE, Plaintiffs request that the Court issue the following relief:
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a. A declaratory judgment that Defendants’ policies, practices, acts, and/or omissions as described herein are unlawful and violate Plaintiffs’ and Class Members’ rights under the Constitution and laws of the United States;
b. A declaratory judgment that any and all Missouri statutory provisions that authorize driver’s license suspensions for unpaid child support but prohibit or do not guarantee consideration of ability to pay — including MO Rev. Stat. §§ 454.1003.1(1) and 454.1005.4 — are unlawful and violate Plaintiffs’ and Class Members’ rights under the Constitution and laws of the United States;
c. An order and judgment preliminarily and permanently enjoining Defendants, their subordinates, agents, employees, representatives, and all others acting or purporting to act in concert with them or on their behalf from issuing or processing orders of driver’s license suspensions for unpaid child support arrears against Plaintiffs and Class Members until such time as the State of Missouri implements a system that complies with the United States Constitution;
d. An order and judgment preliminarily and permanently enjoining Defendants from enforcing any and all Missouri statutes that authorize driver’s license suspensions for unpaid child support but do not permit consideration of ability to pay;
e. An order and judgment preliminarily and permanently ordering Defendants to reinstate Plaintiffs’ and Class Members’ driver’s licenses (insofar as they are suspended based on unpaid child support arrears);
f. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems proper.
Respectfully submitted,
/s/ Rebecca Ramaswamy Rebecca Ramaswamy (5403415NY) Phil Telfeyan (1029157DC) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 rramaswamy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org
/s/ Stephanie Lummus Stephanie Lummus (64999MO) Attorney, McGivney, Kluger, and Cook, P.C. 211 N. Broadway Suite 1295 St. Louis, MO 63102 (314) 571-4332
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 Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 1 of 33 PageID #: 390

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

NATHAN WRIGHT, CAMESE

)

BEDFORD, ASHLEY GILDEHAUS,

)

and LISA MANCINI, on behalf of

)

themselves and others similarly situated, )

)

Plaintiffs,

)

)

v.

)

Case. No. 4:19-cv-398 RLW

)

FAMILY SUPPORT DIVISION of the )

CLASS ACTION

Missouri Department of Social Services; )

JURY DEMANDED

MICHAEL PARSON, in his official

)

capacity as Governor of Missouri;

)

PLAINTIFFS’ MOTION FOR

JENNIFER TIDBALL, in her official

)

PRELIMINARY INJUNCTION

capacity as Acting Director of the

)

Department of Social Services;

)

Hearing: December 11, 2019 at 2pm

REGINALD MCELHANNON, in his

)

Official capacity as Interim Director of the )

Family Support Division;

)

KENNETH ZELLERS, in his official

)

capacity as Acting Director of the

)

Department of Revenue;

)

JOSEPH PLAGGENBERG, in his official )

capacity as Director of the Motor Vehicle )

and Driver Licensing Division,

)

)

Defendants.

)

____________________________________)

Pursuant to Fed. R. Civ. P. 65(a), Plaintiffs Nathan Wright, Camese Bedford, Ashley

Gildehaus, and Lisa Mancini hereby respectfully move this Court to issue a Preliminary Injunction

terminating Plaintiffs’ driver’s license suspensions for unpaid child support and enjoining

Defendants from ordering, issuing, or enforcing driver’s license suspensions for unpaid child

support unless and until Defendants adopt policies and enact regulations to ensure: (1) that no

Missouri parent will be subject to driver’s license suspension for unpaid support when he or she is

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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 2 of 33 PageID #: 391
unable to pay; (2) that all parents facing suspension will receive proper notice and hearing
regarding their right to ability-to-pay protections; and (3) that parents who are unable to pay will
have the option of very low payment plans scaled to ability to pay or, for those who are completely
unable to pay, non-monetary alternatives to driver’s license suspensions (such as participation in
workforce development training, community service, or $0 payment plans with consistent check-
ins). Such policies and regulations must include standardized guidelines under which child support
specialists (“CSSs”) are required to make ability-to-pay determinations in setting reduced payment
agreement amounts for the purpose of avoiding license suspension.1 For example, under the
Family Support Division’s payment agreement system, such standards could include:
 For parents whose reasonable cost-of-living expenses exceed their income, the CSS must agree to a non-monetary alternative to avoid license suspension.
 The CSS must not enter a payment agreement for any payment amount that would result in manifest hardship to the parent or the parent’s dependents.
 For parents whose income is at or below 125% of the Federal Poverty Guidelines, the CSS must agree to a non-monetary alternative to avoid license suspension.
 For parents who receive needs-based, means-tested public assistance, including, but not limited to, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), or veterans’ disability benefits, the CSS must agree to a non-monetary alternative to avoid license suspension.
 For parents who are homeless or residing in a mental health facility, the CSS must agree to a non-monetary alternative to avoid license suspension.
In support of this Motion, Plaintiffs rely upon the enclosed Memorandum.
Respectfully submitted,
/s/ Phil Telfeyan Phil Telfeyan (1029157DC) Rebecca Ramaswamy (5403415NY) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602
1 Plaintiffs are not challenging in this litigation their child support orders or the amounts that they owe in arrears. The payment amounts referenced in this Motion and in the Memorandum are amounts that parents agree to pay monthly for the purpose of avoiding driver’s license suspension. Parents who agree to make reduced payments or no payments (with an attendant agreement to check in regularly) still owe their full child support and still accrue arrears.
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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 3 of 33 PageID #: 392
Washington, D.C. 20004 (202) 505-2058 rramaswamy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org /s/ Stephanie Lummus Stephanie Lummus (64999MO) Attorney, McGivney, Kluger, and Cook, P.C. 211 N. Broadway Suite 1295 St. Louis, MO 63102 (314) 571-4332 slummus@mcgivneyandkluger.com Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on November 1, 2019, I electronically filed the above document with the Clerk of the Court using the ECF System, which will provide electronic copies to the counsel of record.
/s/ Rebecca Ramaswamy Attorney for Plaintiffs
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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 4 of 33 PageID #: 393

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

NATHAN WRIGHT, CAMESE

)

BEDFORD, ASHLEY GILDEHAUS,

)

and LISA MANCINI, on behalf of

)

themselves and others similarly situated, )

)

Plaintiffs,

)

)

v.

)

Case. No. 4:19-cv-398 RLW

)

FAMILY SUPPORT DIVISION of the )

CLASS ACTION

Missouri Department of Social Services; )

JURY DEMANDED

MICHAEL PARSON, in his official

)

capacity as Governor of Missouri;

)

PLAINTIFFS’ MEMORANDUM

JENNIFER TIDBALL, in her official

)

IN SUPPORT OF MOTION FOR

capacity as Acting Director of the

)

PRELIMINARY INJUNCTION

Department of Social Services;

)

REGINALD MCELHANNON, in his

)

Hearing: December 11, 2019 at 2pm

Official capacity as Interim Director of the )

Family Support Division;

)

KENNETH ZELLERS, in his official

)

capacity as Acting Director of the

)

Department of Revenue;

)

JOSEPH PLAGGENBERG, in his official )

capacity as Director of the Motor Vehicle )

and Driver Licensing Division,

)

)

Defendants.

)

____________________________________)

i

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Table of Contents
Table of Authorities ....................................................................................................................... iv I. Introduction......................................................................................................................... 1 II. Statement of Facts............................................................................................................... 2
A. FSD Suspended Plaintiffs’ Driver’s Licenses Because They Were Unable to Make Their Child Support Payments...................................................................... 2 i. Nathan Wright............................................................................................. 2 ii. Camese Bedford .......................................................................................... 3 iii. Ashley Gildehaus ........................................................................................ 4 iv. Lisa Mancini ............................................................................................... 5
B. FSD Orders Driver’s License Suspensions Against Parents Who Cannot Pay Their Child Support ................................................................................................ 5 i. Child Support Is Sometimes Not Affordable for Parents ........................... 6 ii. FSD Orders Driver’s License Suspensions Without Adequate Abilityto-Pay Protections or Notice of Such Protections ....................................... 7 a. FSD’s Payment Agreements Do Not Provide Adequate Abilityto-Pay Protections or Notice of Such Protections ........................... 8 b. An Income Withholding Order Is Not an Option for Many Parents Who Are Unemployed ..................................................... 10 c. Parents Who Cannot Afford Their Child Support Cannot Pay the Entire Past-Due Amount ............................................................... 10 d. Parents Are Not Permitted to Raise Inability to Pay at the PreSuspension Administrative Hearings ............................................ 10 iii. Once a Driver’s License Is Suspended, the Suspension Cannot Be Terminated Until Arrears Are Paid in Full ............................................... 11
C. Driver’s License Suspension Severely Undermines Parents’ Ability to Work, to Care for Their Families, and Even to Pay Child Support ..................................... 12
III. This Court Should Preliminarily Enjoin Defendants from Enforcing Driver’s License Suspensions Against Parents Who Cannot Pay Their Child Support ............................... 12
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A. Plaintiffs Are Highly Likely to Succeed on the Merits Because FSD’s Lack of Ability-to-Pay Protection Violates Equal Protection and Due Process Rights..... 13 i. Defendants’ Suspension Scheme Violates Equal Protection and Substantive Due Process Because It Penalizes Non-Willful Nonpayment .............................................................................................. 13 a. Defendants’ Suspension Scheme Punishes Non-Willful Nonpayment Because It Imposes a Penalty for Nonpayment Without an Indigence Exception................................................... 14 b. Defendants’ Wealth-Based Discrimination Violates Equal Protection and Substantive Due Process Because It Is Fundamentally Unfair ................................................................... 16 ii. Defendants’ Suspension Scheme Violates Substantive Due Process Because It Infringes on Plaintiffs’ Fundamental Right to Travel ............. 19 iii. Defendants’ Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing ..................... 21
B. Plaintiffs Will Suffer Irreparable Harm If the Preliminary Injunction Does Not Issue Because Their Suspensions Exacerbate Their Poverty and Expose Them to Criminal Culpability ......................................................................................... 23
C. Defendants Will Not Be Harmed If the Preliminary Injunction Issues Because Driver’s License Suspensions Make Indigent Parents Less Able to Pay.............. 24
D. An Injunction Will Serve the Public Interest by Halting Discrimination Based on Wealth-Status and Protecting Vulnerable Families ......................................... 24
IV. Conclusion ........................................................................................................................ 25
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Table of Authorities
Cases
Bearden v. Georgia, 461 U.S. 660 (1983) ............................................................................. passim Bell v. Burson, 402 U.S. 535 (1971) ................................................................................. 21, 22, 23 Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016).......................................................... 20, 21 Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) ................................................................................. 19 Griffin v. Illinois, 351 U.S. 12 (1956)........................................................................................... 14 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................................... 22 Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002).................................................. 20, 21 King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646 (2d Cir. 1971)........................................ 20 Lee v. Hutchison, 854 F.3d 978 (8th Cir. 2017) ........................................................................... 13 Lutz v. City of York, Pa., 899 F.2d 255 (3d Cir. 1990) ................................................................. 20 Mackey v. Montrym, 443 U.S. 1 (1979) ........................................................................................ 22 Mathews v. Eldridge, 424 U.S. 319 (1976)................................................................................... 22 Mayer v. City of Chicago, 404 U.S. 189 (1971) ..................................................................... 14, 16 Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1 (1978) ................................................ 22 Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), overruled on other grounds by Phelps-
Roper v. City of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc) ..................... 25 Robinson v. Purkey, 326 F.R.D. 105 (M.D. Tenn. 2018), appeal docketed, No. 18-6121 (6th Cir.
Oct. 24, 2018) ................................................................................................. 14, 15, 17, 18 Saenz v. Roe, 526 U.S. 489 (1999) (Stewart, J., concurring)........................................................ 19 Tate v. Short, 401 U.S. 395 (1971) ........................................................................................ 15, 16 Williams v. Illinois, 399 U.S. 235 (1970) ............................................................................... 15, 16 Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................................... 17
Statutes
Mo. Rev. Stat. § 302.321.2 ........................................................................................................... 12 Mo. Rev. Stat. § 454.1003.1(1)................................................................................................... 1, 5 Mo. Rev. Stat. § 454.1005.4 ................................................................................................... 10, 23 Mo. Rev. Stat. § 558.002.1 ........................................................................................................... 12 Mo. Rev. Stat. § 558.011.1 ........................................................................................................... 12
Rules
Mo. Sup. Ct. R. 88.01(b)................................................................................................................. 6
Regulations
13 C.S.R. 40-106.010(2)(B)............................................................................................................ 7
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I. Introduction This case is about the Family Support Division (“FSD”) perpetuating a cycle of poverty by
unconstitutionally suspending the driver’s licenses of parents who are unable to pay child support. Under Mo. Rev. Stat. § 454.1003.1(1), FSD has the authority to issue an order suspending the driver’s license of any person is not making child support payments and who owes at least three months’ worth of support or at least $2,500, whichever is less. These suspensions are meant to coerce payment, but for those who cannot pay, suspension decreases the likelihood that a person will pay, as it often leads to reduced employment opportunities. These license suspensions harm the interests of the children who are ostensibly meant to benefit from child support enforcement by making it difficult for non-custodial parents to play a meaningful role in their children’s lives and to earn the money that they would gladly use to support their children. Many parents face an impossible choice: comply with the suspensions and lose their jobs, homes, and ability to care for their families, or drive illegally and face the threat of further debt and criminal charges.
FSD itself acknowledged the harmful and counterproductive effects of a driver’s license suspension in a 1998 memorandum implementing procedures for suspending licenses shortly after the program was introduced. According to FSD’s own memorandum:
Suspension of a driver’s license may hinder a person’s ability to pay child support and affect his/her subsistence. When a person’s driver’s license is suspended, it prevents him/her from looking for employment, getting to and from work and possibly visiting his/her child(ren). Ex. 1, Suspension Memo. at 2. The memorandum goes on to emphasize that driver’s license suspensions should be ordered “only if an obligor has the ability to pay his/her child support and fails to pay.” Id. (emphasis in original). Twenty years later, despite this evidence that FSD was aware from the beginning of the importance of driver’s licenses and the futility of ordering suspensions against those who do not have the ability to pay, FSD routinely orders driver’s license
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suspensions without adequate ability-to-pay assessments. Each of the four named Plaintiffs is illustrative of this reality, and FSD’s suspension policies are rife with procedural failures that elucidate how these unconstitutional suspensions are permitted to occur.
License suspension as a debt collection method is unconstitutional and irrational when enforced against people who cannot afford to pay. Suspending the licenses of parents who are unable to pay child support violates their substantive due process, equal protection, and procedural due process rights under the United States Constitution. Plaintiffs therefore respectfully ask this Court to issue a preliminary injunction terminating their child-support suspensions and prohibiting Defendants from suspending the driver’s licenses of Missouri parents who fail to pay child support when nonpayment is non-willful. II. Statement of Facts
A. FSD Suspended Plaintiffs’ Driver’s Licenses Because They Were Unable to Make Their Child Support Payments
Plaintiffs (i) Nathan Wright, (ii) Camese Bedford, (iii) Ashley Gildehaus, and (iv) Lisa Mancini all have driver’s license suspensions due to child support that they cannot afford to pay.
i. Nathan Wright Nathan Wright is a self-employed contractor and a single father who barely makes enough to provide for himself and his two children who are in his custody, ages nine and four. Wright Decl., ECF No. 22-1 at ¶¶ 2, 8, 13–15. He does not receive any support from his younger children’s mother. Id. at ¶ 14. Often, Mr. Wright’s expenses exceed his income. Id. at ¶ 15. Mr. Wright currently owes over $44,135 in arrears and has not been able to make a payment since April of 2018. Ex. 2, Defs.’ Resp. to 3rd Interrogatories at 14; Wright Decl., ECF No. 22-1 at ¶ 4. Because of his unpaid child support, Defendants suspended Mr. Wright’s license on May 24, 2018. Wright Driver Record, ECF No. 22-2. Mr. Wright never received an opportunity to raise inability to pay
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as a defense against suspension enforcement, and he was never offered a reduced payment plan to avoid suspension or any non-monetary alternative. Wright Decl., ECF No. 22-1 at ¶ 6.
Mr. Wright has no choice but to continue driving even though his license is suspended. Id. at ¶ 8. As a contractor, he has to haul his painting and dry-walling equipment with him — including large items such as scaffolding, ladders, and benches — to jobs up to an hour-and-a-half drive from his home in Farmington. Id. at ¶¶ 9, 12. Mr. Wright also needs to drive to carry out his many responsibilities as a custodial father of two. Id. at ¶¶ 10, 16. If Mr. Wright is caught driving, he could face criminal charges. Id. at ¶ 18.
ii. Camese Bedford Camese Bedford is an unemployed veteran who currently owes over $3,626 in child support arrears. Bedford Decl., ECF No. 22-3 at ¶ 1–2; Ex. 2, Defs.’ Resp. to 3rd Interrogatories at 14. Mr. Bedford driver’s license was suspended on February 25, 2017, because he had failed to pay child support for his six-year-old daughter. Bedford Driver Record, ECF No. 22-4. Mr. Bedford does not recall receiving any notice before his license was suspended, and he was not offered a reduced payment plan or any non-monetary alternative to avoid suspension. Bedford Decl., ECF No. 22-3 at ¶ 8. Mr. Bedford has also been charged with a class A misdemeanor due to his inability to pay child support. Id. at ¶ 7. Mr. Bedford is indigent and cannot afford to pay off his arrears. Id. at ¶ 10. His only income is the $140 he receives monthly in disability benefits, and he is often hungry because he cannot afford to feed himself. Id. at ¶ 15–16. Mr. Bedford’s license suspension severely limits his job prospects, and he lost his most recent job because he could not afford bus fare to get there reliably. Id. at ¶ 19. Mr. Bedford has experienced homelessness in the past, and with his income severely affected by his suspension, he worries that he will soon be homeless again. Id. at ¶ 21.
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Not being able to drive makes it very difficult for Mr. Bedford to see his six-year-old daughter. He is entitled to overnight visitation with her every weekend, but most weekends, Mr. Bedford’s inability to drive makes seeing his daughter impossible; he has not seen her at all in months. Id. at ¶¶ 23–25. Mr. Bedford is extremely concerned about the effect that his physical absence has on his daughter’s wellbeing and her future, and he believes that his daughter is depressed as a result of his inability to spend time with her. Id. at ¶¶ 26–27.
iii. Ashley Gildehaus Ashley Gildehaus is a resident of Salem, Missouri, who currently owes over $14,446 in child support arrears, a debt he has no hope of paying off. Gildehaus Decl., ECF No. 22-5 at ¶ 1– 2; Ex. 2, Defs.’ Resp. to 3rd Interrogatories at 15. His driver’s license was suspended on April 7, 2018, because of unpaid child support. Gildehaus Driver Record, ECF No. 22-6. He does not recall receiving a notice before his suspension. Gildehaus Decl., ECF No. 22-5 at ¶ 10. Mr. Gildehaus lost his commercial driver’s license (“CDL”) because of his suspension and misses out on high-paying jobs as well as supplemental income opportunities as a result. Id. at ¶¶ 14–16. Mr. Gildehaus currently has a stay on his driver’s license suspension, which means that he is able to drive legally as long as he is making monthly payments of $680 toward his child support, but if he misses a payment, he will lose the stay immediately. Id. at ¶¶ 11–13. Mr. Gildehaus has been through the process of getting a stay on his driver’s license suspension approximately six times already because he often cannot afford to make the $680 payment. Id. Mr. Gildehaus has to drive for his work, which is in St. Clair, over 70 miles from his home in Salem. Id. at ¶ 18. Every day he goes to work to provide for his family, and he worries that he might not be coming home because he is driving on a suspended license and could go to jail. Id. Mr. Gildehaus struggles to support his wife and their two small children, and the family is in imminent danger of losing their house. Id. at ¶¶ 20–23.
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iv. Lisa Mancini Lisa Mancini is a single mother of four residing in Joplin, Missouri. Mancini Decl., ECF No. 22-7 at ¶ 1, 3. Her driver’s license was suspended on March 16, 2018, because of unpaid child support arrears for her oldest son, and she currently owes over $11,511 in child support. Mancini Driver Record, ECF No. 22-8; Ex. 2, Defs.’ Resp. to 3rd Interrogatories at 14. Ms. Mancini is indigent and unable to pay off her arrears. Mancini Decl., ECF No. 22-7 at ¶ 3. She is the sole provider for her four younger children and does not receive any child support their fathers. Id. In the spring of 2018, Ms. Mancini received a notice that her driver’s license would be suspended unless she paid her child support. Id. at ¶15. Ms. Mancini was offered a payment plan when she called, but she did not have enough money to make any payments, and she was not offered any non-monetary alternatives for avoiding suspension. Id. Her license was suspended on March 16, 2018. Mancini Driver Record, ECF No. 22-8. Ms. Mancini needs to drive. She is a single mother of four children, all in different schools and with different extracurricular commitments. Mancini Decl., ECF No. 22-7 at ¶ 24. The family lives in a rural area with no reliable public transportation; the farthest of her children’s schools is about eight miles from home, the grocery store is four miles away, and the children’s doctors are about 12 to 15 miles away. Id. Getting pulled over while driving on a suspended license is a constant fear for Ms. Mancini, who worries about getting fined or even landing in jail, leaving no one to care for her children. Id. at ¶ 25. B. FSD Orders Driver’s License Suspensions Against Parents Who Cannot Pay
Their Child Support Under Mo. Rev. Stat. § 454.1003.1(1), FSD has the authority to issue an order suspending the driver’s license of any person who “is not making child support payments in accordance with a support order and owes an arrearage in an amount greater than or equal to three months[‘] support
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payments or two thousand five hundred dollars, whichever is less, as of the date of service of a notice of intent to suspend such license.” These suspensions are part of FSD’s “normal course of business,” and they are enforced by the Department of Revenue (“DOR”). Ex. 3, FSD Depo. at 110; Ex. 4, DOR Depo. at 64. Many parents who cannot afford to pay have their licenses suspended by FSD because (i) child support is not always affordable; (ii) FSD’s suspension process does not provide adequate ability-to-pay protections; and (iii) once a suspension is enforced, the only way to terminate it is to pay off all arrears.
i. Child Support Is Sometimes Not Affordable for Parents The initial amount of child support in Missouri is not ordered based upon a meaningful ability-to-pay determination — and Plaintiffs take no position as to whether it should be. Missouri child support orders are established, either by the courts or by FSD, using Civil Procedure Form 14, which calculates a presumptive child support amount that can be rebutted only if the court or agency finds that the amount is “unjust or inappropriate.” Mo. Sup. Ct. R. 88.01(b). Form 14 is not designed to calculate a child support amount that is categorically affordable for the parent paying support; it is designed to balance the paying parent’s ability to pay against the financial needs of the child(ren) and the parent receiving support. For example, the minimum monthly child support amount calculated under Form 14 is $60, even for parents whose gross annual income is $0. Ex. 5, Form 14 Instructions at 20. For a parent making only minimum wage, $8.60 per hour in Missouri,1 Form 14 will calculate a presumed child support amount between $318 and $328 per month.2 Additionally, Form 14 instructs that income can be imputed in certain situations based
1 Mo. Dept. of Labor, https://labor.mo.gov/DLS/MinimumWage (last visited Nov. 1, 2019). A monthly gross income of $1,491 is calculated by dividing the minimum-wage gross annual salary of $17,888 (based on 52 40-hour work weeks) by twelve. 2 See Child Support Guideline Review Schedule, available at courts.mo.gov/file.jsp?id=114615.
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on various sources, including a person’s work history, usual occupation, occupational qualifications, and, if no other information is available, minimum wage.3
Even if a parent is initially able to afford their payments, financial circumstances can change quickly and drastically, and administrative modification of child support orders is only permitted under narrow circumstances.4
FSD itself has acknowledged that sometimes parents cannot afford to pay their child support. The agency’s child support training manual as well as its 1998 Memorandum, in noting that a CSS must determine whether a parent is able to pay child support before ordering license suspension, both acknowledge that some obligors do not have the ability to pay their child support. Ex. 1, Suspension Memo. at 2; Ex. 6, Training Manual Excerpt at 18 (“Before suspending a driver’s license because of a support arrearage, the CSS must determine if the obligor has the ability to pay his/her child support obligation.”).
ii. FSD Orders Driver’s License Suspensions Without Adequate Abilityto-Pay Protections or Notice of Such Protections
Although FSD has acknowledged the importance of not suspending the driver’s licenses of parents who cannot afford to pay,5 the agency’s existing policies do not adequately prevent such suspensions from being ordered. They do not provide any notice that parents who are unable to
3 See Ex. 5, Form 14 Instructions at 8–11. 4 For changes in economic circumstances, “[a] review may be conducted earlier than thirty-six (36) months” only if “there has been a fifty percent (50%) or more increase or involuntary decrease in income of either party to the order, and the division determines that the circumstances that caused the change have existed for at least three (3) months, and that it is reasonably likely they will remain unchanged for another six (6) months or longer.” 13 C.S.R. 40-106.010(2)(B) (for voluntary income decrease, the circumstances must have existed for at least six months). 5 See Ex. 1, Suspension Memo. at 2. (“[FSD] staff [should] issue a license suspension order to the Drivers License Bureau only if an obligor has the ability to pay his/her child support and fails to pay.”) (emphasis in original); see also Ex. 6, Training Manual Excerpt at 18.
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pay have a right to avoid license suspension, nor do they provide non-monetary alternatives (such as workforce development training, community service, or regular check-ins) for those parents.
The first step in FSD’s arrears-based suspension process is to send a Notice of Intent to Suspend License(s), which informs the parent that FSD intends to suspend her license because she owes either $2,500 or three months’ payments in arrears. Ex. 7, Notice of Intent. The Notice does not contain any mention of non-monetary alternatives, reduced payment plans, or any other inability-to-pay protections. Rather, it describes the parent’s options for avoiding license suspension as (a) “enter into a payment agreement,” (b) “provide your current employer so FSD can issue an income withholding order,” (c) “pay the entire past-due amount,” or (d) “request an administrative hearing” (solely to determine whether there is a mistake of fact, not to raise inability to pay). Id. None of these options provides adequate ability-to-pay protections.
a. FSD’s Payment Agreements Do Not Provide Adequate Abilityto-Pay Protections or Notice of Such Protections
FSD’s payment agreement system for avoiding license suspension fails to provide adequate ability-to-pay protection because on its face, it discourages low payment amounts, and in practice, parents are at the mercy of the discretion of FSD’s inconsistent child support specialists.
FSD’s payment agreement policies rarely permit sufficiently low payment amounts for struggling parents.6 There are three types of payment agreements: Standard, Arrearage-Only, and Temporary. Ex. 6, Training Manual Excerpt at 10–12. The Standard agreement is ostensibly used only when a parent “has the ability to pay current and/or past-due support,” the Arrearage-Only agreement is used when a parent owes “past-due support only,” and the Temporary agreement is
6 It is important to note that when parents enter payment agreements to make monthly payments lower than their current support orders, those lowered payments are only for the purpose of avoiding license suspension. The parents still owe their full amounts and still accrue arrears at the same rates — FSD does not have the authority to amend judicial child support orders.
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supposed to be used when a parent is self-employed or unemployed and “unable to pay his/her current support obligation.” Id.
FSD instructs that under a Temporary agreement, the only payment agreement intended for people who are unemployed and cannot afford their payments, the payment amount set by the CSS “as a general rule, should not be less than 50 percent of the current support amount” except “under extreme circumstances.” Ex. 8, Temporary Agreement Instructions at 2. According to FSD, “extreme circumstances” refers to situations that are “rare” or “life-changing;” for example, if the parent’s “house just burned down” or if the parent is a builder and “loses his right arm.” Ex. 3, FSD Depo. at 175, 177–78. “Ordinary job loss” is not an “extreme circumstance” even if it results in complete loss of income. Id. at 178. Therefore, under FSD policy, a parent who loses her job (under ordinary circumstances) will be required to pay at least 50% of her regular child support amount to prevent FSD from suspending her license, regardless of whether she can afford to pay 50%. See, e.g., Mancini Decl., ECF No. 22-7 at ¶ 15 (“I was offered a payment plan, but I did not have enough money to make any payments at that time.”). Moreover, the Notice of Intent to Suspend makes no mention at all of the possibility of making reduced payments to avoid license suspension, so parents may often be unaware that the option exists. Ex. 7, Notice of Intent.
In practice, child support specialists (“CSSs”) have broad discretion in setting payment amounts. See Lummus Decl., ECF No. 22-9 at ¶ 9. But the lack of standardized ability-to-pay guidelines for the hundreds of CSSs employed by FSD results in wildly inconsistent results and often leaves indigent parents believing that they have no option but to pay their full child support amount. See Ex. 3, FSD Depo. at 21 (estimating the number of CSSs to be around 400); see also Wright Decl., ECF No. 22-1 at ¶ 6 (“They told me my only option was to pay my court-ordered $509 per month and did not offer a way to make smaller payments”); see also Gildehaus Decl.,
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ECF No. 22-5 at ¶ 11 (“They ask how much I can pay, but when I suggest an amount, they say the only option is to make the full monthly payment plus $50 toward arrears”). FSD’s payment agreement option therefore does not provide adequate ability-to-pay protections for parents facing driver’s license suspension.
b. An Income Withholding Order Is Not an Option for Many Parents Who Are Unemployed
FSD issues income withholding orders for parents who are employed to garnish their earnings, and FSD can also garnish unemployment benefits. Ex. 3, FSD Depo. at 95, 165, 168– 69. But for parents who are unemployed and ineligible to receive unemployment benefits for whatever reason, income withholding is not an option. Income withholding is also not usually an option for self-employed parents, like Mr. Wright and Mr. Gildehaus.
c. Parents Who Cannot Afford Their Child Support Cannot Pay the Entire Past-Due Amount
Paying the entire past-due amount is, of course, not an option for avoiding license suspension for a parent who fell behind on child support due to inability to pay.
d. Parents Are Not Permitted to Raise Inability to Pay at the PreSuspension Administrative Hearings
The final option for avoiding license suspension is to “request an administrative hearing,” but “the only issues that may be determined in [such] hearing are: whether [the parent is] the correct person; whether the amount of [the] past-due support [meets the statutory criteria]; or whether [the parent] entered into a payment agreement.” Ex. 7, Notice of Intent. These limitations are set by Missouri statute. See Mo. Rev. Stat. § 454.1005.4. Thus, Missouri law precludes abilityto-pay hearings for parents who face driver’s license suspension for past-due child support.
For all the reasons above, FSD’s suspension process is rife with procedural flaws and inconsistencies that result in Defendants suspending the driver’s licenses of many indigent parents.
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In fact, Defendants have admitted that parents who cannot afford to pay their child support sometimes have their driver’s licenses suspended because of their failure to pay. See Ex. 3, FSD Depo. at 187–88; see also Ex. 4, DOR Depo. at 92.
iii. Once a Driver’s License Is Suspended, the Suspension Cannot Be Terminated Until Arrears Are Paid in Full
Once FSD orders a driver’s license suspension for past-due support and DOR enforces it, a parent’s only means of terminating the suspension is to pay her arrears in full (unless the child support case is closed). Ex. 3, FSD Depo. at 208–09. This is likely the reason that over 65% of the 41,903 parents whose driver’s licenses are currently suspended for past-due support (as of June 10, 2019) have had those suspensions for more than three years. Ex. 9, Defs.’ Resp. to 2nd Interrogatories at 4–5. Over 8% have had their suspensions for more than ten years. Id.
FSD offers stays, which allow parents to drive legally while their licenses are suspended, but the stay process relies on the same flawed options that FSD uses for parents hoping to avoid suspension in the first place, including income withholding and payment agreements. “The process of getting a stay is long and difficult,” leaving parents unable to drive legally in the meantime. Gildehaus Decl., ECF No. 22-5 at ¶¶ 11–13 (“One time, the process . . . took three months . . . . Another time, it took six months.”); see also Mancini Decl., ECF No. 22-7 at ¶¶ 18– 20 (“I then called FSD to ask about the status of my stay. . . . I made another payment, and still I heard nothing about the stay.”); Lummus Decl., ECF No. 22-9 at ¶ 6. And as soon as a parent misses a payment after a stay is granted, FSD orders the termination of the stay, and the arduous process begins anew. Gildehaus Decl., ECF No. 22-5 at ¶¶ 12–13 (“I have had five different stays since my license was suspended . . . and I am currently waiting on a sixth.”). Moreover, neither the Notice of Intent to Suspend (Ex. 7) nor the DOR Loss of Driving Privilege Notice (Ex. 10)
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contains any mention of the stay option. The only way for parents to find out that FSD’s stay option is available is “by contacting [the] agency.” Ex. 3, FSD Depo. at 208.
C. Driver’s License Suspension Severely Undermines Parents’ Ability to Work, to Care for Their Families, and Even to Pay Child Support
As FSD itself has recognized, driver’s license suspension “may hinder a person’s ability to pay child support,” may “affect his/her subsistence,” “prevents him/her from looking for employment,” prevents him/her from “getting to and from work,” and can even prevent him/her from “visiting his/her child(ren).” Ex. 1, Suspension Memo. at 2. DOR also admits that having a suspended driver’s license can affect a person’s ability to obtain employment in Missouri:
Q: Is having a driver’s license suspension likely to have any effect on a person’s ability to obtain employment in Missouri?
MS. ROBB: Same objection. A: Yes, I think it probably could, yes. Ex. 4, DOR Depo. at 139. Defendants’ suspensions for unpaid child support harm Missouri parents and actively undermine the goal of collecting child support to benefit children and families. Because driving on a suspended license is a misdemeanor (and can be a felony on the fourth or subsequent offense), FSD’s suspension scheme also creates a downward spiral from poverty to criminal culpability: unpaid child support leads to suspension, which often leads to the offense of driving without a valid license. The fine for a first offense of driving while suspended is up to $500, and subsequent offenses can result in higher fines and even jail time. Mo. Rev. Stat. §§ 302.321.2, 558.002.1, 558.011.1. The statutory provisions related to driving while suspended contain no exceptions for situations in which driving is a necessity. III. This Court Should Preliminarily Enjoin Defendants from Enforcing Driver’s License Suspensions Against Parents Who Cannot Pay Their Child Support Plaintiffs request that this Court enjoin Defendants from operating their driver’s license suspension scheme for four reasons: (A) Plaintiffs are highly likely to succeed on the merits of
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their claims because punishment of those unable to pay violates Equal Protection and Due Process rights; (B) without injunctive relief, Plaintiffs will continue to be hindered from earning a living and caring for their families; (C) an injunction will not harm Defendants because it will make parents better able to pay the child support Defendants seek to enforce; and (D) an injunction will serve the public interest by ending discriminatory suspensions and strengthening families. Lee v. Hutchison, 854 F.3d 978, 983 (8th Cir. 2017).
A. Plaintiffs Are Highly Likely to Succeed on the Merits Because FSD’s Lack of Ability-to-Pay Protection Violates Equal Protection and Due Process Rights
Plaintiffs are highly likely to prevail on the merits because Defendants violate their constitutional rights under the Due Process and Equal Protection Clauses by suspending their driver’s licenses for nonpayment of child support without any exception for inability to pay. This suspension scheme is unconstitutional for four reasons: (i) it violates Equal Protection and Substantive Due Process by punishing parents for non-willful nonpayment, (ii) it infringes on Plaintiffs’ fundamental right to intrastate travel because Plaintiffs have no viable public transit options, and (iii) it violates Procedural Due Process rights by suspending driver’s licenses for failure to pay without an ability-to-pay hearing or notice thereof.
i. Defendants’ Suspension Scheme Violates Equal Protection and Substantive Due Process Because It Penalizes Non-Willful Nonpayment
Defendants enforce suspensions for nonpayment of child support against parents who cannot pay.7 These suspensions violate equal protection and substantive due process (a) because they punish non-willful nonpayment and (b) because they are fundamentally unfair.
7 Plaintiffs are not challenging their child support amounts or their arrears, nor are they challenging the process by which child support orders are established. They are challenging the enforcement mechanism of a driver’s license suspension as enforced against those who cannot pay.
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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 21 of 33 PageID #: 410
a. Defendants’ Suspension Scheme Punishes Non-Willful Nonpayment Because It Imposes a Penalty for Nonpayment Without an Indigence Exception
Defendants enforce suspensions for failure to pay child support against willful and nonwillful nonpayers alike, but because section 454.1003.1(1) contains no indigence exception, it is discriminatory on the basis of wealth even though it does not on its face explicitly target parents who are poor. See Robinson v. Purkey, 326 F.R.D. 105, 149–61 (M.D. Tenn. 2018), appeal docketed, No. 18-6121 (6th Cir. Oct. 24, 2018).
The United States Supreme Court has held that penalties for nonpayment are unconstitutional when there is no exception for indigence. In Griffin v. Illinois, the Court considered a requirement that individuals pay a fee for trial transcripts on appeal. 351 U.S. 12, 13 (1956). Indigent individuals were thus denied their transcripts. Id. The requirement was neutral on its face, but the Court nevertheless found that its effect was “to deny adequate appellate review to the poor while granting such review to all others,” which was unconstitutional. Id. Thus, Griffin established the principle that an otherwise neutral law discriminates against people who are indigent if it denies them some benefit because they cannot pay. And because Griffin involved the right to appeal, its holding guarantees the application of this wealth-based discrimination analysis even where there is no fundamental right at stake. Id. at 18 (noting that “a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all,” but holding that a wealth-based prohibition on appeal without an indigence waiver is unconstitutional).
The Supreme Court has since expanded the application of wealth-based discrimination. Importantly, the doctrine is not limited to situations in which an indigent person faces imprisonment; rather, the analysis applies to all additional consequences that are imposed upon indigent debtors for failure to pay. Mayer v. City of Chicago, 404 U.S. 189, 197 (1971) (“[t]he invidiousness of the discrimination that exists when criminal procedures are made available only
14

Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 22 of 33 PageID #: 411
to those who can pay is not erased by any differences in the sentences that may be imposed.”). In Williams v. Illinois, the Court extended the logic of Griffin to hold that a court cannot increase an indigent person’s sentence beyond the maximum based solely on the person’s inability to pay fines arising from conviction. 399 U.S. 235 (1970) (explaining that, because the statute contained no exception for indigence, it “visited different consequences on two categories of persons.”). In Tate v. Short, the Court explained that Williams’ holding was not limited to cases involving prison time; it applies to fine-only infractions as well. 401 U.S. 395 (1971). The Tate 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.” Robinson, 326 F.R.D. at 150.
Finally, the Supreme Court articulated a requirement that before a punishment for nonpayment can be imposed upon a person, there must be a finding that the nonpayment was willful. This requirement safeguards against unconstitutional wealth-based discrimination by ensuring that non-willful nonpayment is not punished. Bearden v. Georgia, 461 U.S. 660, 672– 73 (1983) (holding that a person’s probation could not be revoked for failure to pay a fine without a finding that the person’s nonpayment was willful or that alternative forms of punishment were inadequate). Where an individual “has willfully refused to pay . . . when he has the means to pay,” Defendants are “perfectly justified” in suspending the individual’s license “as a sanction to enforce collection.” Id. at 668. But when an individual “has made all reasonable efforts to pay . . . and yet cannot do so through no fault of his own, it is fundamentally unfair” to impose an additional consequence as a collection method. Id.
The unconstitutionality of Missouri’s child support suspension scheme is easily understood through the lens of the Griffin cases. Section 454.1003.1(1) is ostensibly neutral — it enforces
15

Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 23 of 33 PageID #: 412
suspension against all nonpayers equally, regardless of their wealth. But as Williams makes clear, because the statute has no exception for indigence, it ensures that avoidance of suspension is “contingent upon one’s ability to pay” and therefore “visit[s] different consequences on two categories of persons” — those who can pay their child support and those who cannot. 399 U.S. at 242. This amounts to “unconstitutional discrimination” because Plaintiffs suffer failure-to-pay license suspensions “solely because of their indigency.” Tate, 401 U.S. at 397–98. It makes no difference that the consequence at issue is license suspension rather than imprisonment. See Mayer, 404 U.S. at 197 (collateral consequences “may bear as heavily on an indigent . . . as forced confinement”). And Plaintiffs do not challenge license suspension for willful nonpayment, but only for non-willful nonpayment. See Williams, 399 U.S. at 241 (an additional consequence that “results directly from an involuntary nonpayment of a fine or court costs [is] impermissible discrimination that rests on ability to pay”). Defendants’ suspension scheme therefore discriminates on the basis of wealth.
The plaintiffs in the Griffin line of cases did not challenge the amounts of their underlying fees or fines; rather, the issue in each case was the consequence imposed upon those who could not afford to pay. Similarly, Plaintiffs in this lawsuit are not challenging the amounts of their child support orders; they are challenging driver’s license suspension as a consequence for nonpayment when nonpayment is non-willful.
b. Defendants’ Wealth-Based Discrimination Violates Equal Protection and Substantive Due Process Because It Is Fundamentally Unfair
Defendants’ discriminatory suspension scheme is fundamentally unfair and violates the Equal Protection and Due Process Clauses. Because Defendants impose license suspension as a punishment for nonpayment of child support without any guaranteed exception for indigence, the suspensions amount to discrimination on the basis of wealth and should be rigorously scrutinized.
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See Robinson, 326 F.R.D. at 155 (“[I]f the scheme at issue affords no adequate exception based on indigence, Griffin and the cases applying it instruct [courts] 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 [individual].” (quoting Bearden, 461 U.S. at 671)). This analysis “requires a careful inquiry into such factors as” (1) “the nature of the individual interest affected,” (2) “the extent to which it is affected,” (3) “the rationality of the connection between legislative means and purpose,” and (4) “the existence of alternative means for effectuating the purpose.” Bearden, 461 U.S. at 666–67. All four Bearden factors weigh in favor of finding the lack of an indigence exception in Defendants’ suspension scheme constitutionally impermissible.
Regarding the first Bearden factor, the nature of the individual interest affected in this case is serious, with far-reaching consequences. A driver’s license is often necessary for finding and maintaining employment, and it is essential for carrying out the duties and responsibilities of everyday life, especially in a state like Missouri, where many residents live in rural areas, and public transportation is often unavailable. See Wooley v. Maynard, 430 U.S. 705, 715 (1977) (“[D]riving an automobile” is “a virtual necessity for most Americans.”); see also Ex. 1, Suspension Memo. at 2; Wright Decl., ECF No. 22-1 at ¶ 8 (“I don’t have any other means for getting from place to place.”); Gildehaus Decl., ECF No. 22-5 at ¶ 18 (“I have to drive for my work.”); Mancini Decl., ECF No. 22-7 at ¶ 24 (“We live in a rural area with no reliable public transportation. The grocery store is four miles away. My children’s doctors are about 12 to 15 miles away.”). The loss of a license can directly affect a parent’s livelihood, interfere with their ability to care for and visit their children, render them helpless in the event of an emergency — the list of potential consequences goes on. See Robinson, 326 F.R.D. at 156. Because of the great scope of the ramifications, the nature of the interest affected by these suspensions is serious.
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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 25 of 33 PageID #: 414
As to the second Bearden factor, the extent to which Plaintiffs’ interest is affected is also significant, since the suspensions are indefinite, and suspended individuals are not able to drive without risking fines and imprisonment. Plaintiffs’ suspensions will continue until their arrears are paid. Since a suspended driver’s license impedes a parent’s ability to earn a living, making child support payments becomes even more difficult once one’s license is suspended. As discussed in section II.B.iii above, it can be extremely difficult for a parent to obtain and maintain a stay so that she may drive legally while her license is suspended. Gildehaus Decl., ECF No. 22-5 at ¶¶ 11–12 (“The process of getting a stay is long and difficult. . . . As soon as I miss a monthly payment — that is, any time I am unable to pay the full $680 in a given month — the stay is taken away.”). Thus, the deprivation is great because it is not time-limited, and it is difficult to obtain relief while the suspension is ongoing.
As to the third Bearden factor, there is no rational connection between license suspension and child support collection or child welfare. Suspending licenses to encourage payment of child support is irrational and counterproductive when applied to indigent parents because people who are unable to pay only become less able to pay when their driver’s licenses are suspended. Taking away transportation options makes it harder for parents to earn money and thus subverts any legitimate state interest in collecting child support. See Robinson, 326 F.R.D. at 157. Most people will do whatever it takes to make sure their children are cared for; if parents owe enough unpaid child support that they are facing license suspension, it is likely because they cannot afford to pay it. And when parents must choose between paying arrears and paying rent, buying medication, feeding their families, and other necessary expenses, they cannot prioritize arrears. FSD itself has acknowledged that in such cases, suspensions are actually counterproductive, causing parents to
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lose income. Ex. 1, Suspension Memo. at 2 (“Suspension of a driver’s license may hinder a person’s ability to pay child support.”).
License suspension is also counterproductive to the best interests of children, because when parents cannot drive, they cannot visit their children or otherwise engage in everyday parenting responsibilities. Id. (“When a person’s driver’s license is suspended, it prevents him/her from . . . possibly visiting his/her child(ren).”). In many cases, the noncustodial parents’ inability to participate in childcare responsibilities and visitation leads to a breakdown in family dynamics, as custodial parents begin to resent the noncustodial parents’ perceived lack of reliability and may even conclude that the noncustodial parent is not fit to be an involved parent. Lummus Decl., ECF No. 22-9 at ¶ 7. This can significantly harm a noncustodial parent’s relationship with the children. Id. Thus, there is no rational connection between license suspension and child welfare.
Under the fourth and final Bearden factor, Missouri has many “alternative means for effectuating the purpose[s]” of child support collection and family welfare, as license suspension is one of many enforcement tools. Bearden, 461 at 667. A more efficient and fair mechanism for reducing child support orders would allow parents to keep up with their child support while still being able to drive to work and care for their families.
ii. Defendants’ Suspension Scheme Violates Substantive Due Process Because It Infringes on Plaintiffs’ Fundamental Right to Travel
Defendants’ suspension of Plaintiffs’ driver’s licenses because they cannot pay their child support strips Plaintiffs of their mobility, implicating their constitutional right to travel, which is “a virtually unconditional personal right, guaranteed by the Constitution to us all.” Saenz v. Roe, 526 U.S. 489, 498 (1999) (Stewart, J., concurring) (citations omitted).
The Eighth Circuit has never decided whether the right to travel extends to travel within a state. Doe v. Miller, 405 F.3d 700, 713 (8th Cir. 2005) (“We find it unnecessary in this case to
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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 27 of 33 PageID #: 416
decide whether there is a fundamental right to intrastate travel under the Constitution.”). But other appellate courts have found that the right is constitutionally protected. See, e.g., King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971) (“It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.”); see also Lutz v. City of York, Pa., 899 F.2d 255, 256 (3d Cir. 1990) (“[A] constitutional right of intrastate travel . . . exists, and grows out of substantive due process.”) (emphasis in original); Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002) (holding that the Due Process Clause of the Fourteenth Amendment protects the “right to travel locally through public spaces and roadways.”).
Although Plaintiffs are not expressly prohibited from traveling, taking away their driver’s licenses is a significant deprivation. Public transportation in Missouri is extremely limited and an unrealistic option for meeting life’s basic needs. See Wright Decl, ECF No. 22-1 at ¶ 8; see also Bedford Decl., ECF No. 22-3 at ¶ 24; Gildehaus Decl., ECF No. 22-5 at ¶ 18; Mancini Decl., ECF No. 22-7 at ¶ 24. Plaintiffs do not have access to other modes of transportation. Thus, Plaintiffs “depend on” driving “to carry out [their] daily life activities,” Johnson, 310 F.3d at 498, and Defendants’ suspensions infringe on their fundamental rights.
Defendants’ suspension scheme is comprehensive and must be analyzed under the strictest scrutiny for restrictions on intrastate travel. See Cole v. City of Memphis, 839 F.3d 530, 537 (6th Cir. 2016) (noting that strict scrutiny is appropriate where an intrastate travel restriction imposes a broad prohibition). Because the right to intrastate travel is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty,” it is a fundamental right that requires strict scrutiny. Johnson, 310 F.3d at 489. Plaintiffs’ “right to travel locally through public spaces and roadways — perhaps more than any other right secured by substantive due process — is an
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everyday right, a right [they] depend on to carry out [their] daily life activities. It is, at its core, a right of function.” Id. at 498 (emphasis added). By suspending Plaintiffs’ driver’s licenses, Defendants have imposed a functional ban on their intrastate travel that constitutes far more than a restriction on travel that lasts a few hours or only covers a few blocks. Cole, 839 F.3d at 537. Rather, it forecloses all travel because driving is Plaintiffs’ only practical means of transport. Unlike in Cole v. City of Memphis — which involved an ordinance that was limited geographically to a specific radius and limited in time to specific two-hour periods, id. — Defendants’ suspension scheme creates broad prohibitions on all driving in all locations at all times in all circumstances for an indefinite period and is therefore subject to strict scrutiny. See Johnson, 310 F.3d at 502 (“broad prohibition . . . requires that we apply strict scrutiny”).
Defendants’ suspension scheme cannot survive strict scrutiny because it is not “the least restrictive means to accomplish the [State’s] goal” of child support collection. Id. at 503. Defendants’ suspension scheme is not narrowly tailored to any goal. Instead, it is a blanket penalty that takes no account of non-willfulness. Defendants could allow parents less-restrictive options for modifying their child support orders when they are struggling financially, or at the very least allow them to drive on provisional or restricted licenses. See Bearden, 461 U.S. at 672. People who cannot afford to pay their child support have an even more difficult time without their licenses, as they are no longer able to commute to and from work to earn money. While suspending licenses of willful non-payers may be appropriate, taking away the licenses of those who are simply too poor to pay is not narrowly tailored to Defendants’ goal of child support collection.
iii. Defendants’ Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing
A driver’s license is recognized as a property interest that may not be taken away without due process of law. Bell v. Burson, 402 U.S. 535 (1971); see also Mackey v. Montrym, 443 U.S.
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1, 10 (1979) (“[S]uspension of a driver’s license for statutorily defined cause implicates a protectable property interest.”). Due process in this case includes an opportunity to assert inability to pay before suspension. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner”). Due process also requires that parents facing suspension for unpaid child support receive notice that a pre-deprivation hearing is available and that they can raise inability to pay. See Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 15 (1978) (holding notice “does not comport with constitutional requirements where it does not advise the [individual] of the availability of a procedure for protesting a proposed termination . . . as unjustified.”).
The pre-deprivation hearing must contemplate ability to pay. Because Defendants suspend parents’ driver’s licenses due to failure to pay, a meaningful hearing in this context is one that determines whether nonpayment was willful. Non-willfulness erodes Plaintiffs’ liability in a failure-to-pay charge. See, e.g., Bearden, 461 U.S. at 660. Thus, an ability-to-pay hearing is required to determine willfulness before suspension. See Bell, 402 U.S. at 536–37 (“[T]he State’s statutory scheme, in failing before suspending the licenses to afford [the motorist] a hearing on the question of his fault or liability, denied him due process”) (emphasis added). A hearing that fails to consider an essential element, such as willfulness, is not meaningful. See Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (“It is . . . fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.”) (internal quotation marks omitted); see also Bell, 402 U.S. at 541–42. For failure-to-pay violations, any meaningful hearing necessarily must include a willfulness determination before a suspension. FSD itself has identified ability to pay as an essential inquiry in the suspension process. Ex. 1, Suspension Memo. at 2 (stating that staff should “issue a license suspension order to the Drivers License Bureau only
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if an obligor has the ability to pay his/her child support and fails to pay”) (emphasis in original); see also Ex. 6, Training Manual Excerpt at 18 (“The CSS will suspend a driver’s license if [the criteria are met] and the [Notice of Intent to Suspend] was based on an arrearage that the obligor has the ability to pay.”) (emphasis added).
The ability-to-pay hearing must be available before suspension takes effect. Bell, 402 U.S. at 542 (“except in emergency situations (and this is not one)[,] due process requires that when a State seeks to terminate an interest such as that here involved, it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.”) (emphasis added). The purpose of FSD’s suspension scheme is to coerce payment, not to get dangerous drivers off the road. Therefore, there is no urgent safety need calling for immediate suspension, and Plaintiffs and others similarly situated are entitled to an ability-to-pay hearing prior to license suspension.
Missouri law does not currently guarantee or even allow a pre-deprivation ability-to-pay hearing for parents facing suspension due to unpaid child support. The only hearing that is available is one that precludes ability-to-pay inquiries. See Mo. Rev. Stat. § 454.1005.4. Because Missouri law does not require a pre-deprivation ability-to-pay hearing for parents facing driver’s license suspension for unpaid child support, there is a high risk that indigent parents will be deprived of their driver’s licenses for reasons directly attributable to their poverty.
B. Plaintiffs Will Suffer Irreparable Harm If the Preliminary Injunction Does Not Issue Because Their Suspensions Exacerbate Their Poverty and Expose Them to Criminal Culpability
Without intervention from this Court, Plaintiffs’ driver’s licenses will remain suspended indefinitely and they will suffer the continuing cycle of poverty caused by Defendants’ suspension scheme. Mr. Wright risks arrest every day that he is forced to drive to work and to care for his children while his license is suspended. Wright Decl., ECF No. 22-1 at ¶¶ 18–20. Mr. Bedford’s
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suspension has severely impacted his ability to be a parent to his six-year-old daughter, whom he now rarely sees. Bedford Decl., ECF No. 22-3 at ¶¶ 19, 23–27. Mr. Gildehaus lost his commercial driver’s license as a result of his suspension, which severely hinders his ability to provide for his two younger children and his ability to pay child support for his older son. Gildehaus Decl., ECF No. 22-5 at ¶¶ 11, 14–16, 20–22. Ms. Mancini lost her most recent full-time job because of her license suspension and is forced to risk further fines and possible incarceration every day as she drives in the course of caring for her four youngest children. Mancini Decl., ECF No. 22-6 at ¶¶ 19–21, 24–25. All four named Plaintiffs are in desperate need of relief, and the putative class members they represent are no doubt experiencing the same urgent need.
C. Defendants Will Not Be Harmed If the Preliminary Injunction Issues Because Driver’s License Suspensions Make Indigent Parents Less Able to Pay
Defendants will not suffer any harm under a preliminary injunction. Because the putative class includes only those who are unable to pay their child support, FSD will not suffer the loss of uncollected child support for their custodial parents if this Court orders Defendants to terminate suspensions and refrain from further unlawful suspensions; no punishment or incentive can force a person to pay a debt that she cannot pay. To the extent that suspensions are ordered and enforced against willful nonpayers, FSD is free to continue collecting unpaid child support using the suspension tool. Plaintiffs recognize that when nonpayment is willful, a driver’s license suspension can be a powerful motivator to pay. But when nonpayment is nonwillful, as it is for Plaintiffs and class members, suspension actually “hinder[s] a person’s ability to pay child support.” Ex. 1, Suspension Memo at 2.
D. An Injunction Will Serve the Public Interest by Halting Discrimination Based on Wealth-Status and Protecting Vulnerable Families
A preliminary injunction will serve the public interest because Defendants’ conduct is violating Plaintiffs’ constitutional rights and the rights of tens of thousands of putative class
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members. “[T]he public is served by the preservation of constitutional rights.” Phelps-Roper v.
Nixon, 545 F.3d 685, 694 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of
Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc).
The interests of children and families will also be served by a halting of unconstitutional
suspensions. As FSD admits, when enforced against a parent who cannot pay, a driver’s license
suspension “may hinder a person’s ability to pay child support” and even prevent a parent from
“visiting his/her child(ren).” Ex. 1, Suspension Memo. at 2. Many non-custodial parents,
including three of the four named Plaintiffs, are also custodial parents, and as a driver’s license
suspension “affect[s] [a person’s] subsistence,” those children are significantly harmed when their
parents are “prevent[ed] . . . from looking for employment, getting to and from work,” earning
enough money to support their children (those in their custody and those not), and sharing in the
many childcare duties that involve driving. Id. Finally, if an injunction issues, FSD can still use
driver’s license suspensions to enforce child support against parents whose nonpayment is willful.
IV. Conclusion For all the reasons above, Plaintiffs respectfully request that this Court grant their Motion
for Preliminary Injunction.
Respectfully submitted,
/s/ Phil Telfeyan Phil Telfeyan (1029157DC) Rebecca Ramaswamy (5403415NY) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 rramaswamy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org
/s/ Stephanie Lummus Stephanie Lummus (64999MO) Attorney, McGivney, Kluger, and Cook, P.C.
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Case: 4:19-cv-00398-RLW Doc. #: 45 Filed: 11/01/19 Page: 33 of 33 PageID #: 422 211 N. Broadway Suite 1295 St. Louis, MO 63102 (314) 571-4332 slummus@mcgivneyandkluger.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE
I hereby certify that on November 1, 2019, I electronically filed the above document with the Clerk of the Court using the ECF System, which will provide electronic copies to the counsel of record.
/s/ Rebecca Ramaswamy Attorney for Plaintiffs
26

 
 Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 1 of 14 PageID #: 550

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

NATHAN WRIGHT, CAMESE

)

BEDFORD, ASHLEY GILDEHAUS,

)

and LISA MANCINI, on behalf of

)

themselves and others similarly situated, )

)

Plaintiffs,

)

)

v.

)

Case. No. 4:19-cv-398 RLW

)

FAMILY SUPPORT DIVISION of the )

CLASS ACTION

Missouri Department of Social Services; )

JURY DEMANDED

MICHAEL PARSON, in his official

)

capacity as Governor of Missouri;

)

PLAINTIFFS’ MOTION FOR

JENNIFER TIDBALL, in her official

)

CLASS CERTIFICATION

capacity as Acting Director of the

)

Department of Social Services;

)

Hearing: December 11, 2019 at 2pm

REGINALD MCELHANNON, in his

)

Official capacity as Interim Director of the )

Family Support Division;

)

KENNETH ZELLERS, in his official

)

capacity as Acting Director of the

)

Department of Revenue;

)

JOSEPH PLAGGENBERG, in his official )

capacity as Director of the Motor Vehicle )

and Driver Licensing Division,

)

)

Defendants.

)

____________________________________)

Pursuant to Fed. R. Civ. P. 23, Plaintiffs Nathan Wright, Camese Bedford, Ashley

Gildehaus, and Lisa Mancini hereby respectfully move this Court to certify a declaratory and

injunctive class defined as:

All individuals whose Missouri driver’s licenses are, or will be, suspended for failure to pay child support and whose reason for nonpayment was, or will be, inability to pay.

In support of this Motion, Plaintiffs rely upon the enclosed Memorandum.

1

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 2 of 14 PageID #: 551
Respectfully submitted, /s/ Phil Telfeyan Phil Telfeyan (1029157DC) Rebecca Ramaswamy (5403415NY) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 rramaswamy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org /s/ Stephanie Lummus Stephanie Lummus (64999MO) Attorney, McGivney, Kluger, and Cook, P.C. 211 N. Broadway Suite 1295 St. Louis, MO 63102 (314) 571-4332 slummus@mcgivneyandkluger.com
CERTIFICATE OF SERVICE I hereby certify that on November 1, 2019, I electronically filed the above document with the Clerk of the Court using the ECF System, which will provide electronic copies to the counsel of record.
/s/ Rebecca Ramaswamy Attorney for Plaintiffs
2

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 3 of 14 PageID #: 552

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

NATHAN WRIGHT, CAMESE

)

BEDFORD, ASHLEY GILDEHAUS,

)

and LISA MANCINI, on behalf of

)

themselves and others similarly situated, )

)

Plaintiffs,

)

)

v.

)

Case. No. 4:19-cv-398 RLW

)

FAMILY SUPPORT DIVISION of the )

CLASS ACTION

Missouri Department of Social Services; )

JURY DEMANDED

MICHAEL PARSON, in his official

)

capacity as Governor of Missouri;

)

PLAINTIFFS’ MEMORANDUM

JENNIFER TIDBALL, in her official

)

IN SUPPORT OF MOTION FOR

capacity as Acting Director of the

)

CLASS CERTIFICATION

Department of Social Services;

)

REGINALD MCELHANNON, in his

)

Hearing: December 11, 2019 at 2pm

Official capacity as Interim Director of the )

Family Support Division;

)

KENNETH ZELLERS, in his official

)

capacity as Acting Director of the

)

Department of Revenue;

)

JOSEPH PLAGGENBERG, in his official )

capacity as Director of the Motor Vehicle )

and Driver Licensing Division,

)

)

Defendants.

)

____________________________________)

I. Introduction

This case is about the Missouri Department of Social Services’ Family Support Division

and the Missouri Department of Revenue perpetuating a cycle of poverty by unconstitutionally

suspending the driver’s licenses of tens of thousands of Missouri parents who are unable to pay

child support. Under MO Rev. Stat. § 454.1003.1(1), the Family Support Division (“FSD”) has

the authority to issue an order suspending the driver’s license of any person who is not making

child support payments and who owes at least three months’ worth of payments or at least $2,500, 1

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 4 of 14 PageID #: 553
whichever is less. These suspensions are meant to coerce payment, but for those who cannot pay, the loss of a driver’s license decreases the likelihood that a person will be able to pay child support, as it often leads to job loss, reduced employment opportunities, eviction, and greater difficulty carrying out the responsibilities of everyday life.
Moreover, suspending the driver’s licenses of non-custodial parents makes it more difficult for them to see their children regularly, pick them up for visitation, or share in caring for them by taking them to doctor’s appointments and participating in school activities. Thus, these license suspensions harm the interests of the children who are ostensibly meant to benefit from child support enforcement by making it difficult for non-custodial parents to play a meaningful role in their children’s lives and to earn the money that they would gladly use to support their children. Many parents whose licenses are suspended face an impossible choice: comply with the suspensions and lose their jobs, homes, and ability to care for their families, or drive illegally and face the threat of further debt and criminal charges if they are caught.
License suspension as a debt collection method is unconstitutional and irrational when enforced against people who cannot afford to pay: no amount of coercion can force money out of a person who has none. Suspending the licenses of Missouri parents who are unable to pay child support violates their substantive due process, equal protection, and procedural due process rights under the United States Constitution. Because Defendants’ suspension scheme affects innumerable parents and families throughout the state of Missouri, class certification is necessary to litigate this dispute properly.
Class action is the only reasonable recourse that impoverished class members have for remedying this unconstitutional driver’s license suspension scheme. The parents harmed by these suspensions are unable to pay their monthly child support obligations; thus, they lack the resources
2

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 5 of 14 PageID #: 554
to hire their own lawyers to bring individual claims. Providing an economical alternative for aggrieved individuals is a primary purpose of the class action device. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 338 (1980) (finding the purpose of class action is to motivate individuals “to bring cases that for economic reasons might not be brought otherwise.”). Class members “may be without any effective redress unless they may employ the class-action device.” Id. Even if potential class members could afford to try these cases individually, the courts would be clogged with thousands of suits, redundant discovery, and repeated adjudication of many similar controversies, wasting judicial time and resources. Such waste is unnecessary given that Plaintiffs and class members seek only declaratory and injunctive relief with no need for individualized determinations. Thus, class action is the best mechanism for resolving this dispute and ending this injustice. Plaintiffs respectfully request that this Court grant their Motion for Class Certification by certifying a declaratory and injunctive class defined as: All individuals whose Missouri driver’s licenses are, or will be, suspended for failure to pay child support and whose reason for nonpayment was, or will be, inability to pay. II. Discussion
Plaintiffs’ motion should be granted because (A) the proposed class satisfies the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a); and (B) the proposed class satisfies the requirements of Rule 23(b)(2).
A. The Proposed Class Satisfies the Requirements of Rule 23(a) Plaintiffs satisfy the requirements of Rule 23(a) because (i) the class “is so numerous that joinder of all members is impracticable,” Fed. R. Civ. P. 23(a)(1); (ii) “there are questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2); (iii) Plaintiffs’ “claims . . . are typical of the claims . . . of the class,” Fed. R. Civ. P. 23(a)(3); and (iv) Plaintiffs “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).
3

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i. Numerosity Plaintiffs satisfy numerosity because the class “is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This is a statewide class that includes all parents whose licenses are currently suspended because of their inability to pay child support as well as all parents who will suffer such suspension during the pendency of this lawsuit. Plaintiffs estimate that tens of thousands of Missouri parents currently have suspended driver’s licenses because they cannot afford to make their child support payments. Defendants state that as of June 10, 2019, approximately 41,903 non-custodial parents have their driver’s licenses suspended for unpaid child support. Ex.1, Defs.’ Resp. to 1st Interrogatories at 10 (“This number represents a snapshot of all driver’s licenses suspended for failure to pay past due support at one moment, as recorded in the Missouri Automated Child Support System (MACSS). The total fluctuates, but generally remains around 40,000.”). While it is possible that some of the 41,903 parents are willful nonpayers (and thus not class members), it is very likely that most of the 41,903 parents are unable to pay their arrears, and it is virtually certain that a sufficient number to make joinder impracticable are unable to pay. Most people want to be able to drive legally. People who can afford to pay their child support to terminate a driver’s license suspension are likely to do so. See, e.g., Wright Decl., ECF No. 22-1 at ¶ 8 (“I don’t have any other means for getting from place to place.”); see also Gildehaus Decl., ECF No. 22-5 at ¶ 18 (“I have to drive for my work.”); Mancini Decl., ECF No. 22-7 at ¶ 24 (“I need to drive. . . . We live in a rural area with no reliable public transportation. The grocery store is four miles away. My children’s doctors are about 12 to 15 miles away.”). Of the 41,903 parents who currently have suspensions for unpaid child support, 27,372 individuals (65.3%) have had the suspensions for more than three years, and 13,937 individuals (33.3%) have had the suspensions for more than five years. Defs.’ Resp. to 2nd Interrogatories, ECF No. 45-9 at 5. It
4

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 7 of 14 PageID #: 556
is difficult to imagine why a person (let alone tens of thousands of people) who could afford to terminate a driver’s license suspension would fail to do so for over five years, especially in a state like Missouri where many areas do not have robust public transportation systems.
Joinder would be impracticable even if the class only included clients with whom class counsel has worked directly. In 2018 alone, class counsel litigated the cases of 39 parents whose licenses were suspended due to their inability to make their child support payments. Lummus Decl., ECF No. 22-9 at ¶ 2; see also Arkansas Ed. Ass’n v. Bd. of Ed. of Portland, Ark. Sch. Dist., 446 F.2d 763, 765 (8th Cir. 1971) (approving a class of twenty members). Moreover, Class counsel’s former St. Louis office receives five to ten requests every month for assistance with this issue, and the office receives many more requests from affected parents throughout the state of Missouri. Lummus Decl., ECF No. 22-9 at ¶ 2. These numbers alone would lead to over 100 plaintiffs within a year, which would be impracticable.
Several other factors also support numerosity. The statewide nature of the class makes joinder impracticable, as it creates a large geographical dispersion of class members. Sanft v. Winnebago Industries, Inc., 214 F.R.D. 514, 523 (N.D. Iowa 2003), amended in part, 216 F.R.D. 453 (N.D. Iowa 2003) (“The finding of geographic dispersion generally supports a finding of numerosity because such a finding supports the proposition that joinder is impracticable.”). Another factor that makes joinder impracticable is the fact that class members are, by definition, indigent. This Court may “consider the financial resources of the potential class members with regard to their ability to institute individual lawsuits” in determining whether numerosity is satisfied, and indigent class members are likely unable to bring individual lawsuits. Id. at 524. Plaintiffs’ inclusion of future Class Members in their Class definition also makes joinder impracticable. J.S.X. Through Next Friend D.S.X. v. Foxhoven, 417CV00417SMRHCA, 2019 WL
5

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 8 of 14 PageID #: 557
1147144, at *7 (S.D. Iowa Mar. 13, 2019) (“Additionally, because the Proposed Class includes unidentified future class members, joinder of all class members is impracticable.”); see also M.B. by Eggemeyer v. Corsi, 327 F.R.D. 271, 278 (W.D. Mo. 2018) (finding numerosity where future class members are included because “future members of the putative class are necessarily unidentifiable”); Jordan v. Los Angeles County, 669 F.2d 1311, 1320 (9th Cir. 1982), vacated on other grounds, County of Los Angeles v. Jordan, 459 U.S. 810 (1982) (noting that numerosity is satisfied for any class that contains “unnamed and unknown future [class members]” because “joinder of unknown individuals is inherently impracticable.”).
For all these reasons, joinder is impracticable, and numerosity is satisfied. ii. Commonality
Plaintiffs satisfy commonality because “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Each of Plaintiffs’ claims “depend[s] upon a common contention . . . of such a nature that . . . determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 376 (8th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Named Plaintiffs seek declaratory relief concerning whether FSD’s suspension scheme violates the rights of class members, and they seek injunctive relief mandating that Defendants end the scheme so that the constitutional rights of class members will be protected in the future. The declaratory and injunctive relief sought is common to all proposed class members; there are no individualized questions related to damages.
Common questions of law and fact exist as to all class members. Among the most important, but not the only, common questions of fact are:  Whether FSD has a policy and practice of using driver’s license suspension to coerce child
support payments from non-custodial parents who are unable to pay;
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Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 9 of 14 PageID #: 558



Whether FSD has a policy and practice of suspending driver’s licenses without conducting

meaningful inquiries into a person’s ability to pay before taking such action; and



Whether FSD’s policy and practice of using driver’s license suspension to coerce child

support payments from parents who are unable to pay is in fact counterproductive.

Among the most important, but not the only, common questions of law are:

 Whether fundamental principles of due process and equal protection require FSD to take into account a parent’s ability to pay before suspending a license for nonpayment of child support;
 Whether suspending a parent’s driver’s license solely because she or he cannot afford to make child support payments is lawful; and
 Whether a person is entitled to a meaningful inquiry into his or her present ability to pay child support before Defendants suspend his or her license for nonpayment.

These common legal and factual questions arise from one scheme: Defendants’ driver’s

license suspensions based on inability to pay child support. The material requirements of the

relevant statutes do not vary from class member to class member, and the resolution of these legal

and factual issues will determine whether all class members are entitled to the relief they seek.

Dukes, 564 U.S. at 350 (“What matters to class certification . . . is not the raising of common

‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate

common answers apt to drive the resolution of the litigation.”) (emphasis in original). Because

Plaintiffs’ claims mount a facial challenge to the constitutionality of the statutory scheme that

authorizes Defendants to suspend parents’ driver’s licenses for nonpayment of child support

without any indigence exception and without guaranteeing — or even permitting — an opportunity

for the parents to present inability to pay as a defense, the relief Plaintiffs’ seek calls for “common

answers” that will resolve the litigation, and commonality is satisfied. Id.

iii. Typicality Plaintiffs satisfy typicality because their “claims . . . are typical of the claims . . . of the

class.” Fed. R. Civ. P. 23(a)(3). Named Plaintiffs’ claims are typical of the other class members’

claims, and they have the same interests in this case as all other class members. DeBoer v. Mellon

7

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 10 of 14 PageID #: 559
Mortgage Co., 64 F.3d 1171, 1174 (8th Cir.1995) (“The burden of showing typicality is fairly easily met so long as other class members have claims similar to the named plaintiff.”). Each class member has had or will have his or her driver’s license suspended due to an inability to pay child support.
All four named Plaintiffs are indigent Missouri parents who currently have driver’s license suspensions ordered and enforced by Defendants because Plaintiffs fell behind on their child support payments due to their inability to pay. Plaintiff Nathan Wright currently owes over $44,135 in arrears and has not been able to make a payment since April of 2018 due to his indigence. Defs.’ Resp. to 3rd Interrogatories, ECF No. 45-2 at 14; Wright Decl., ECF No. 22-1 at ¶ 4, 13–15. Because of his unpaid child support, Defendants suspended Mr. Wright’s driver’s license on May 24, 2018. Wright Driver Record, ECF No. 22-2. Plaintiff Camese Bedford currently owes over $3,626 in child support arrears. Defs.’ Resp. to 3rd Interrogatories, ECF No. 45-2 at 14. He is indigent and cannot afford to pay off his arrears. Bedford Decl., ECF No. 22-3 at ¶ 10. Defendants suspended Mr. Bedford’s driver’s license on February 25, 2017, because he was unable to pay child support. Bedford Driver Record, ECF No. 22-4. Plaintiff Ashley Gildehaus currently owes over $14,446 in child support arrears, a debt he has no hope of paying off due to his indigence. Defs.’ Resp. to 3rd Interrogatories, ECF No. 45-2 at 15; Gildehaus Decl., ECF No. 22-5 at ¶¶ 20–23. Defendants suspended Mr. Gildehaus’s driver’s license on April 7, 2018, because of past-due child support. Gildehaus Driver Record, ECF No. 22-6. Plaintiff Lisa Mancini currently owes over $11,511 in child support, which she cannot pay due to her indigence. Defs.’ Resp. to 3rd Interrogatories, ECF No. 45-2 at 14; Mancini Decl., ECF No. 22-7 at ¶ 3. Defendants suspended Ms. Mancini’s driver’s license on March 16, 2018, because of her unpaid arrears. Mancini Driver Record, ECF No. 22-8. Thus, all four named Plaintiffs are typical of the
8

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 11 of 14 PageID #: 560
proposed class: All individuals whose Missouri driver’s licenses are, or will be, suspended for failure to pay child support and whose reason for nonpayment was, or will be, inability to pay.
The answer to whether Defendants’ punitive suspension scheme is unconstitutional will determine the claims of named Plaintiffs and every other class member, and the declaratory and injunctive relief that Plaintiffs seek is identical to the relief sought by the proposed class members. Moreover, none of the four named Plaintiffs “is subject to a unique defense that threatens to play a major role in the litigation.” In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437 (8th Cir.1999). Typicality is therefore satisfied.
iv. Adequacy Plaintiffs satisfy the adequacy requirement because they “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). As stated above, all four named Plaintiffs are members of the class because all four are indigent Missouri parents who currently have driver’s license suspensions ordered and enforced by Defendants because Plaintiffs fell behind on their child support payments due to their inability to pay. Roby v. St. Louis S.W. Ry. Co., 775 F.2d 959, 961 (8th Cir. 1985) (“A fundamental requirement of representatives in a class action is that they must be members of the subclasses they seek to represent.”). Moreover, Plaintiffs suffer the same injury as other class members — driver’s license suspension for inability to pay child support — and have the same interest as other class members in ending Defendants’ unconstitutional suspension scheme and getting their licenses reinstated. Glen v. Fairway Indep. Mortg. Corp., 265 F.R.D. 474, 478 (E.D. Mo. 2010), order clarified, 4:08CV730 RWS, 2010 WL 891621 (E.D. Mo. Mar. 8, 2010) (“[T]he class representative must possess the same interest and suffer the same injury as the class members.”) (citing East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). Finally, Plaintiffs have no known conflicts with class members. The fact that
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Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 12 of 14 PageID #: 561
Plaintiffs are not seeking damages eliminates a common source of conflict, as Defendants cannot simply settle with Plaintiffs individually to moot their claims.
The counsel representing named Plaintiffs and the proposed class are well-qualified and prepared to vigorously prosecute this matter. Named Plaintiffs are represented by attorneys from Equal Justice Under Law and McGivney, Kluger, and Cook, P.C. Counsel’s combined experience includes litigating complex civil rights matters in federal court, representing individuals whose licenses have been suspended due to child support arrearages, and extensive knowledge of the details of Defendants’ scheme and the relevant constitutional and statutory law. Ex. 2, Telfeyan Decl. The combined efforts of Class Counsel have so far included extensive investigation into Defendants’ suspension scheme, including court room observation; numerous interviews with witnesses, attorneys, and advocates throughout the region; and interviews with national experts in constitutional law, law enforcement, judicial procedures, and criminal law. Id. Class Counsel possess a detailed understanding of local laws and practices as they relate to federal constitutional requirements. Id. Counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ scheme and with the relevant state and federal laws. Id.
Because the interests of the class members will be fairly and adequately protected by named Plaintiffs and their attorneys, the adequacy requirement is satisfied.
B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2) As Defendants’ driver’s license suspension scheme directly affects all class members, the proposed class meets the requirements of Rule 23(b)(2), which states that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) is the most appropriate option under Rule 23(b) because Defendants’ license suspension policy affects all those within the proposed class: All individuals whose Missouri driver’s licenses
10

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 13 of 14 PageID #: 562
are, or will be, suspended for failure to pay child support and whose reason for nonpayment was, or will be, inability to pay. As noted in Dukes, “‘[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant to capture.” 564 U.S. at 361 (quoting Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997)).
All class members seek the same declaratory and injunctive relief, which is in keeping with the standard for Rule 23(b)(3). Per Dukes, “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Id. at 360 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L REV. 97, 132 (2009)). The relief sought would apply equally to all class members; all class members seek to have Defendants’ suspension scheme — and the statutory provisions that create and permit the scheme — declared unconstitutional and replaced by policies that do not adversely affect individuals based on wealth. Furthermore, as Rule 23(b)(2) does not allow monetary damages, the injunctive and declaratory relief sought by this action is appropriate. See id. at 360–61 (“[23(b)(2)] does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”).
Certification of the injunctive class under Rule 23(b)(2) is merited because named Plaintiffs and the rest of the class members are all individuals who, absent the relief that they seek, will continue to be subjected to an unconstitutional set of practices, policies, and procedures. III. Conclusion
For all the reasons above, Plaintiffs respectfully request that this Court grant their Motion for Class Certification.
Respectfully submitted, /s/ Phil Telfeyan
11

Case: 4:19-cv-00398-RLW Doc. #: 46 Filed: 11/01/19 Page: 14 of 14 PageID #: 563
Phil Telfeyan (1029157DC) Rebecca Ramaswamy (5403415NY) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 rramaswamy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org /s/ Stephanie Lummus Stephanie Lummus (64999MO) Attorney, McGivney, Kluger, and Cook, P.C. 211 N. Broadway Suite 1295 St. Louis, MO 63102 (314) 571-4332 slummus@mcgivneyandkluger.com Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on November 1, 2019, I electronically filed the above document with the Clerk of the Court using the ECF System, which will provide electronic copies to the counsel of record.
/s/ Rebecca Ramaswamy Attorney for Plaintiffs
12

 
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