Case: 2:17-cv-66 As of: 06/01/2020 08:26 PM MDT 1 of 9
U.S. District Court District of Montana (Butte) CIVIL DOCKET FOR CASE #: 2:17−cv−00066−SEH

CLOSED

DiFrancesco v. Fox et al Assigned to: Judge Sam E Haddon Cause: 42:1983 Civil Rights Act Plaintiff Michael DiFrancesco on behalf of himself and others similarly situated
Plaintiff Ashley Davis on behalf of herself and others similarly situated

Date Filed: 08/31/2017 Date Terminated: 06/17/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Phil Telfeyan EQUAL JUSTICE UNDER LAW 400 7th Street NW Suite 602 Washington, DC 20004 202−505−2058 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Ramaswamy EQUAL JUSTICE UNDER LAW 400 7th Street NW Suite 602 Washington, DC 20004 202−505−2058 Email: rramaswamy@equaljusticeunderlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Farris−Olsen MORRISON, SHERWOOD, WILSON & DEOLA, PLLP 401 N Last Chance Gulch PO Box 557 Helena, MT 59624 406−442−3261 Fax: 406−443−7294 Email: rfolsen@mswdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott L. Peterson MORRISON, SHERWOOD, WILSON & DEOLA, PLLP 401 N Last Chance Gulch PO Box 557 Helena, MT 59624 406−442−3261 Fax: 406−443−7294 Email: speterson@mswdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phil Telfeyan (See above for address) LEAD ATTORNEY PRO HAC VICE

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ATTORNEY TO BE NOTICED
Rebecca Ramaswamy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Farris−Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott L. Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Steve Bullock in his official capacity as Governor of Montana TERMINATED: 03/27/2018
Defendant Tim Fox in his official capacity as Attorney General of Montana
Defendant Sarah Garcia in her official capacity as Administrator of the Motor Vehicle Division
Defendant Michele Snowberger in her official capacity as Bureau Chief of the Driver Services Bureau

represented by Robert Thomas Cameron MONTANA ATTORNEY GENERAL 215 North Sanders PO Box 201401 Helena, MT 59620−1401 406−442−2026 Email: rob.cameron@mt.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Thomas Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hannah E. Tokerud MONTANA ATTORNEY GENERAL PO Box 201401 215 North Sanders Helena, MT 59620−1401 406−444−2026 Fax: 406−444−3549 Email: Hannah.Tokerud@mt.gov ATTORNEY TO BE NOTICED
represented by Robert Thomas Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hannah E. Tokerud (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Thomas Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Hannah E. Tokerud (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 09/01/2017 09/05/2017
09/11/2017
09/11/2017 09/11/2017 09/25/2017 10/17/2017 10/17/2017 10/18/2017
11/07/2017 11/21/2017

# Docket Text
1 COMPLAINT against Steve Bullock, Tim Fox, Sarah Garcia, Michele Snowberger, filed by Michael DiFrancesco. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit) (ELL) (Entered: 08/31/2017)
Filing fee: $ 400.00, receipt number 0977−200527 (ELL) (Entered: 08/31/2017)
2 MOTION Phil Telfeyan to Appear Pro Hac Vice ( Filing fee $ 255 receipt number 0977−2005618.) Robert Farris−Olsen appearing for Plaintiff Michael DiFrancesco (Farris−Olsen, Robert) (Entered: 08/31/2017)
3 MOTION Catherine Sevcenko to Appear Pro Hac Vice ( Filing fee $ 255 receipt number 0977−2005630.) Robert Farris−Olsen appearing for Plaintiff Michael DiFrancesco (Farris−Olsen, Robert) (Entered: 08/31/2017)
4 MOTION Rebecca Ramaswamy to Appear Pro Hac Vice ( Filing fee $ 255 receipt number 0977−2005633.) Robert Farris−Olsen appearing for Plaintiff Michael DiFrancesco (Farris−Olsen, Robert) (Entered: 08/31/2017)
5 NOTICE of Filing Exhibits 6 and 7 re: 1 Complaint (Attachments: # 1 Exhibit) (Farris−Olsen, Robert) (Entered: 09/01/2017)
6 ORDER. Pla shall withdraw the application for phv admission of one of the above mentioned lawyers on or before 9/12/17. The Court will take up the applications upon receipt of the withdrawal ordered. Signed by Judge Sam E Haddon on 9/5/2017. (ELL) (Entered: 09/05/2017)
7 NOTICE by Michael DiFrancesco re 3 MOTION Catherine Sevcenko to Appear Pro Hac Vice ( Filing fee $ 255 receipt number 0977−2005630.) (Farris−Olsen, Robert) Modified on 9/12/2017 to indicate that finance has been notified re refund of PHV fee (ELL). Modified on 9/28/2017 to indicate that party has been refunded PHV fee by finance on 9/13/17 (ELL). (Entered: 09/11/2017)
8 ORDER granting 2 Motion to Appear Pro Hac Vice ; granting 4 Motion to Appear Pro Hac Vice Acknowledgment of PHV Order due by 9/26/2017. Signed by Judge Sam E Haddon on 9/11/2017. (ELL) (Entered: 09/11/2017)
9 Letter to Attorneys Telfeyan and Ramaswamy RE ECF Registration. (ELL) (Entered: 09/11/2017)
10 NOTICE of Acknowledgment of Pro Hac Vice Order by Michael DiFrancesco re 8 Order on Motion to Appear Pro Hac Vice, (Telfeyan, Phil) (Entered: 09/25/2017)
11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Robert Thomas Cameron appearing for Defendants Steve Bullock, Tim Fox, Sarah Garcia, Michele Snowberger (Cameron, Robert) (Entered: 10/17/2017)
12 Brief/Memorandum in Support re 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Steve Bullock, Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Entered: 10/17/2017)
13 Notice of Undeliverable Electronic Notice: re 12 Brief/Memorandum in Support, 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Name of attorney whose NEF was undeliverable: Robert Thomas Cameron. (MRC) (Entered: 10/18/2017)
14 RESPONSE to Motion re 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Michael DiFrancesco. (Farris−Olsen, Robert) (Entered: 11/07/2017)
15 REPLY to Response to Motion re 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS COMPLAINT filed by Steve Bullock, Tim Fox, Sarah Garcia, Michele

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02/07/2018 02/16/2018
03/02/2018 03/02/2018
03/02/2018 03/16/2018 03/23/2018 03/30/2018 03/30/2018 04/02/2018 04/05/2018
08/17/2018 08/17/2018
08/31/2018

Snowberger. (Cameron, Robert) (Entered: 11/21/2017)
16 NOTICE by Steve Bullock, Tim Fox, Sarah Garcia, Michele Snowberger NOTICE OF UNAVAILABILITY OF COUNSEL FOR STATE (Cameron, Robert) (Entered: 02/07/2018)
17 ORDER. The Plaintiff shall file an appropriate motion for class certification on or before March 2, 2018, at 4:45 p.m. Defendants shall have to and including March 16, 2018, at 4:45 p.m. in which to file a motion in opposition to certification with brief, or a response brief in opposition. Plaintiff's reply brief will be due on or before March 30, 2018, at 4:45 p.m. The parties are directed to meet, confer, and file a joint report on or before March 30, 2018, at 4:45 p.m. Defendant's Motion to Dismiss Complaint (With Prejudice) is DENIED WITHOUT PREJUDICE to renewal if appropriate following determination of class certification. Signed by Judge Sam E Haddon on 2/16/2018. (NOS) (Entered: 02/16/2018)
18 MOTION to Certify Class Rebecca Ramaswamy appearing for Plaintiff Michael DiFrancesco (Ramaswamy, Rebecca) Modified on 10/2/2018 Ann Wayrynen to report (HEG). (Modified to terminate motion as moot; Amended Motion to Certify Class filed on 11/2/18 as Doc. 43.) (NOS) (Entered: 03/02/2018)
19 Brief in Support of Motion to Certify Class Rebecca Ramaswamy appearing for Plaintiff Michael DiFrancesco (Attachments: # 1 Exhibit Email from Patrick McJannet, # 2 Exhibit Declaration of Phil Telfeyan) (Ramaswamy, Rebecca) Modified on 3/5/2018 to reflect terming motion event as brief was misfiled and correct event to use was "Brief in Support". Regenerated NEF. Created relationship to 18 Motion (APP). (Entered: 03/02/2018)
20 NOTICE by Michael DiFrancesco re 18 MOTION to Certify Class of Errata (Peterson, Scott) (Entered: 03/02/2018)
21 RESPONSE to Motion re 18 MOTION to Certify Class ANSWER BRIEF IN OPPOSITION TO CLASS CERTIFICATION filed by Steve Bullock, Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Entered: 03/16/2018)
22 STIPULATION of Dismissal of Steve Bullock by Michael DiFrancesco. (Farris−Olsen, Robert) (Entered: 03/23/2018)
23 JOINT DISCOVERY PLAN by Michael DiFrancesco. (Farris−Olsen, Robert) (Entered: 03/30/2018)
24 REPLY to Response to Motion re 18 MOTION to Certify Class filed by Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 03/30/2018)
25 AMENDED DOCUMENT by Michael DiFrancesco. Amended to 23 Joint Discovery Plan. (Farris−Olsen, Robert) (Modified on 4/2/2018 to terminate incorrectly filed motion event; modify docket text.) (NOS) (Entered: 04/02/2018)
26 ORDER re; 18 MOTION to Certify Class − all parties shall have to and including August 3, 2018, in which to conduct discovery on issues relevant to Plaintiff's Motion to Certify Class. Supplemental briefs in support of party's position due by 8/17/2018, responses due by 8/31/2018, replies due by 9/14/2018. A hearing on the Plaintiff's Motion to Certify Class will be set by further order of the Court. Signed by Judge Sam E Haddon on 4/5/2018. (CDH) (Entered: 04/05/2018)
27 SUPPLEMENTAL RESPONSE to Motion re 18 MOTION to Certify Class as to 26 ORDER filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Attachments: # 1 Exhibit 1 − Discovery Responses) (Cameron, Robert) (Modified to amend docket text.) (NOS) (Entered: 08/17/2018)
28 SUPPLEMENTAL Brief/Memorandum in Support re 18 MOTION to Certify Class as to 26 ORDER filed by Michael DiFrancesco. (Attachments: # 1 Ramaswamy Declaration, # 2 Defs' Response to Interrogatories, # 3 DI Code 601 Chart, # 4 DI Code 605 Chart, # 5 All FTC Chart) (Ramaswamy, Rebecca) (Modified to amend docket text.) (NOS) (Entered: 08/17/2018)
29 RESPONSE to 28 Supplemental Brief/Memorandum in Support re 18 MOTION to Certify Class as to 26 ORDER filed by Tim Fox, Sarah Garcia, Michele Snowberger.

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08/31/2018 09/14/2018 09/14/2018 09/27/2018 09/28/2018 10/16/2018
10/17/2018 10/24/2018

(Cameron, Robert) (Modified to amend docket text, link to motion.) (NOS) (Entered: 08/31/2018)
30 REPLY to RESPONSE to 27 SUPPLEMENTAL RESPONSE to Motion re 18 MOTION to Certify Class as to 26 ORDER filed by Michael DiFrancesco. (Attachments: # 1 Exhibit Defs' Answer to Pl's Second Set of Discovery Requests, # 2 Exhibit Second Ramaswamy Declaration) (Ramaswamy, Rebecca) (Modified to amend docket text, link to motion.) (NOS) (Entered: 08/31/2018)
31 Brief/Response to Order re 29 Brief/Response to Order Plaintiff's Reply Supplemental Brief in Support of Class Certification filed by Michael DiFrancesco. (Ramaswamy, Rebecca) (Modified to link to motion.) (NOS) (Entered: 09/14/2018)
32 REPLY to Response to Motion re 18 MOTION to Certify Class STATE'S REPLY BRIEF RE: PLAINTIFF'S MOTION TO CERTIFY CLASS filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Entered: 09/14/2018)
33 ORDER Setting Hearing on Motion 18 MOTION to Certify Class : Motion Hearing set for 10/16/2018 at 10:00 AM in Helena, MT before Judge Sam E Haddon. Contract Court Reporter is Needed. Signed by Judge Sam E Haddon on 9/27/2018. (HEG) (Entered: 09/27/2018)
34 ORDERED: The Court has determined that a status conference with counsel to address and discuss issues directly related to Plaintiffs Motion to Certify Class should be conducted in advance of the hearing on Plaintiffs Motion to Certify Class set for 10:00 a.m. on October 16, 2018. Signed by Judge Sam E Haddon on 9/28/2018. (HEG) Modified on 10/2/2018 Ann Wayrynen to report . (HEG). (Entered: 09/28/2018)
35 MINUTE ENTRY for proceedings held before Judge Sam E Haddon: Status Conference re 18 MOTION to Certify Class filed by Michael DiFrancesco held on 10/16/2018. Motion Hearing not held re 18 MOTION to Certify Class filed by Michael DiFrancesco. Present in the Courtroom are Phil Telfeyan and Scott Peterson for the plaintiff; Robert Thomas Cameron for defendants. Court advises counsel of the purpose of todays proceeding; reviewing matter to date. Class definition is inadequate and can not serve as a class claim asserted in the complaint of the inability to pay. Parties will have until 10/26, to file simultaneous briefs in support of their controversies that exist. Plaintiff has until close of business Friday, 11/2 to file an amended class certification in addition to if necessary or appropriate an amended complaint as stated. Plaintiff has until Friday, 11/2 to file a brief of explanation of particular driving infractures. Counsel are to meet and confer before 11/2 to address and agree upon and submit to the court; complete court records including driving infractures of the plaintiff. Counsel for the plaintiff is to provide a written report to the court on or before 11/2 to identify every case of which counsel has information that relates to the issues that are raised in this case as stated; (title of court; cause no. and date of filing.) Defendant will have until 11/9 to review materials and file a supplement. Court expects a report from plaintiff counsel by 11/2 to identify every statue in Montana that plaintiff feels was violated by his claim or class members not appropriately applied. Defendant will have until 11/9, to file a supplement to identify any further statutes. Upon review of the documents discussed, the court will take up another hearing if appropriate on the issues. No arguments on the motion for class certification were heard. Court is in recess. Hearing commenced at 9:30 and concluded at 10:09. (Court Reporter Ann Wayrynen.) (Law Clerk: E. Anderson), (Hearing held in Helena) (HEG) (Entered: 10/16/2018)
36 ORDERED: The Plaintiff shall file an amended motion for class certification on or before November 2, 2018. Plaintiff shall have the option, if deemed appropriate, on or before November 2, 2018, to file an amended complaint setting forth modifications or changes in allegations in the complaint necessary and appropriate and in support of the revised proposed class certification. (please see order for additional deadlines and information.) Signed by Judge Sam E Haddon on 10/17/2018. (HEG) (Entered: 10/17/2018)
37 TRANSCRIPT DESIGNATION ORDER FORM Transcript Request by Michael DiFrancesco for proceedings held on 10/16/18 before Judge Haddon. Court reporter Ann Wayrynen, ann@wlcrs.com. Transcript due by 10/29/2018. (Farris−Olsen, Robert) (Entered: 10/24/2018)

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10/24/2018
10/25/2018 10/26/2018 10/26/2018 11/02/2018
11/02/2018 11/02/2018 11/02/2018 11/02/2018 11/02/2018
11/05/2018 11/05/2018 11/08/2018

38 TRANSCRIPT of Status Conference held on October 16, 2018, before Judge Sam E. Haddon. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER, the Clerks Office or the court reporter NOTICE: A NOTICE OF INTENT TO REQUEST REDACTION MUST BE FILED WITHIN 14 DAYS OF THIS FILING. Contact Court Reporter Ann Wayrynen, 406−494−4755. For further information, please see the Transcript Redaction Procedure and Schedule on the Court Reporters page of our website. Redaction Request due 11/14/2018. Redacted Transcript Deadline set for 11/26/2018. Release of Transcript Restriction set for 1/22/2019. (NOS) (Entered: 10/24/2018)
39 NOTICE by Michael DiFrancesco Notice of Intent to File Amended Complaint (Ramaswamy, Rebecca) (Entered: 10/25/2018)
40 NOTICE by Michael DiFrancesco Notice Regarding Future Class Members (Ramaswamy, Rebecca) (Entered: 10/26/2018)
41 Brief/Response to Order re 36 Order. STATE'S BRIEF RE LACK OF JUSTICIABLE CONTROVERSY FOR POTENTIAL FUTURE CLASS MEMBERS filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Modified to amend event type.) (NOS) (Entered: 10/26/2018)
42 AMENDED COMPLAINT against Tim Fox, Sarah Garcia, Michele Snowberger, filed by Michael DiFrancesco. (Attachments: # 1 Exhibit Index, # 2 Exhibit DiFrancesco Declaration, # 3 Exhibit Davis Declaration, # 4 Exhibit MVD Website, # 5 Exhibit Rutzke Affidavit, # 6 Exhibit Driver's License Sanctions, # 7 Exhibit Talk Poverty Mont 2016, # 8 Exhibit DiFrancesco Bozeman Record, # 9 Exhibit DiFrancesco Suspension Notice, # 10 Exhibit DiFrancesco Driver Record, # 11 Exhibit HTO Declaration, # 12 Exhibit Davis Driver Record, # 13 Exhibit Davis Missoula Municipal Ct, # 14 Exhibit Davis Missoula County, # 15 Exhibit Semuels Article, # 16 Exhibit Impacts and Fairness Report, # 17 Exhibit Census Data, # 18 Exhibit Commuter Data) (Ramaswamy, Rebecca) (Entered: 11/02/2018)
43 Amended MOTION to Certify Class Rebecca Ramaswamy appearing for Plaintiff Michael DiFrancesco (Ramaswamy, Rebecca) (Entered: 11/02/2018)
44 Brief/Memorandum in Support re 43 Amended MOTION to Certify Class Rebecca Ramaswamy appearing for Plaintiff Michael DiFrancesco (Attachments: # 1 Exhibit Index, # 2 Exhibit Rutzke Affidavit, # 3 Exhibit Telfeyan Declaration) (Ramaswamy, Rebecca) (Modified on 11/5/2018 to term incorrectly docketed motion event and amend docket text.) (NOS) (Entered: 11/02/2018)
45 NOTICE by Michael DiFrancesco Joint Notice Re: Alleged Violations (Ramaswamy, Rebecca) (Entered: 11/02/2018)
46 NOTICE by Michael DiFrancesco Notice Re: Similar Cases (Ramaswamy, Rebecca) (Entered: 11/02/2018)
47 NOTICE by Michael DiFrancesco re 36 Order,, Set Deadlines, Plaintiffs' Statement of Relevant Citations (Attachments: # 1 Exhibit Bozeman City Court Records, # 2 Exhibit Ennis City Court Records, # 3 Exhibit Bozeman Justice Court Records, # 4 Exhibit Official Driving Record, # 5 Exhibit 2009 Suspension Notice, # 6 Exhibit Habitual Offender Declaration, # 7 Exhibit Missoula City and Justice Court Records, # 8 Exhibit Davis Driving Record, # 9 Exhibit Davis Custer County Records) (Farris−Olsen, Robert) (Entered: 11/02/2018)
48 Notice of Correction: re 44 Amended MOTION to Certify Class Brief in Support of Amended Motion to Certify Class. The filing error relates to: Incorrect Docket Event used. See the attached document for a brief description of the error made. (NOS) (Entered: 11/05/2018)
Remark: Plaintiff Ashley Davis added to docket per Amended Complaint filed on November 2, 2018. (NOS) (Entered: 11/05/2018)
49 NOTICE of Appearance by Hannah E. Tokerud on behalf of All Defendants (Tokerud, Hannah) (Entered: 11/08/2018)

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11/16/2018 11/16/2018 11/20/2018 12/21/2018 12/26/2018 12/26/2018
12/26/2018 01/08/2019
01/09/2019 01/09/2019
02/14/2019 02/14/2019 02/22/2019 02/22/2019

50 ANSWER to 42 Amended Complaint,,, by Tim Fox, Sarah Garcia, Michele Snowberger. (Tokerud, Hannah) (Entered: 11/16/2018)
51 RESPONSE to Motion re 43 Amended MOTION to Certify Class BRIEF IN OPPOISITION TO AMENDED MOTION FOR CLASS CERTIFICATION filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Tokerud, Hannah) (Entered: 11/16/2018)
52 REPLY to Response to Motion re 43 Amended MOTION to Certify Class filed by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 11/20/2018)
53 ORDER Setting Hearing on Motion 43 Amended MOTION to Certify Class , Motion Hearing set for 1/3/2019 at 11:00 AM in Helena, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 12/21/2018. (HEG) Modified on 12/21/2018 Tina Brilz to report (HEG). (Entered: 12/21/2018)
54 Unopposed MOTION to Continue Hearing on Plaintiffs' Amended Motion to Certify Class Robert Thomas Cameron appearing for Defendants Tim Fox, Sarah Garcia, Michele Snowberger (Attachments: # 1 Text of Proposed Order) (Cameron, Robert) (Entered: 12/26/2018)
55 ORDERED: Defendant's Motion for Continuance is GRANTED. The hearing on Plaintiffs' Amended Motion to Certify Class, set for January 3, 2019, is VACATED and RESET for 11 :00 a.m. on January 8, 2019, at the Paul G. Hatfield Courthouse, Helena, Montana. Signed by Judge Sam E Haddon on 12/26/2018. (HEG) (Entered: 12/26/2018)
Reset Hearings: Motion Hearing set for 1/8/2019 at 11:00 AM in Helena, MT before Judge Sam E Haddon. (HEG) Modified on 12/26/2018 Tina Brilz to report (HEG). (Entered: 12/26/2018)
56 MINUTE ENTRY for proceedings held before Judge Sam E Haddon: Motion Hearing held on 1/8/2019 re 43 Amended MOTION to Certify Class filed by Michael DiFrancesco. Present in the Courtroom are Rebecca Ramaswamy and Scott Peterson for plaintiff; Robert Cameron for defendants. Court advises counsel of the purpose of todays proceeding reviewing matter to date. Arguments heard on pending motion by counsel Ramaswamy and Cameron. Court addresses the issue before it and will take matter under consideration. An opinion will be issued as prompt as feasible. Nothing further from the parties. Court is in Recess. Hearing commenced at 11:00 and concluded at 11:44. (Court Reporter Tina Brilz.) (Law Clerk: E. Anderson), (Hearing held in Helena) (HEG) (Entered: 01/08/2019)
57 MEMORANDUM AND ORDER: Plaintiffs' Amended Motion for Class Certification is DENIED. Signed by Judge Sam E Haddon on 1/9/2019. (HEG) (Entered: 01/09/2019)
58 Order Setting: Joint Proposed Discovery due by 2/22/2019. Preliminary Pretrial Statement due by 2/22/2019. A preliminary pretrial conference to develop a case management plan will be held at 10:00 a.m. on March 5, 2019, at the Chambers of District Judge Sam E. Haddon, Paul G. Hatfield Courthouse, Helena, Montana. Lead counsel for each party is to attend in person. Signed by Judge Sam E Haddon on 1/9/2019. (HEG) (Entered: 01/09/2019)
59 Joint MOTION to Vacate 58 Order Setting, Rebecca Ramaswamy appearing for Plaintiffs Ashley Davis, Michael DiFrancesco (Attachments: # 1 Proposed Order) (Ramaswamy, Rebecca) (Entered: 02/14/2019)
60 ORDER denying 59 Motion to Vacate Pretrial Conference and for Joint Proposed Briefing Schedule. The Court's order of January 9, 2019, in all respects remains in full force and effect. The preliminary pretrial conference will proceed as scheduled. Signed by Judge Sam E Haddon on 2/14/2019. (NOS) (Entered: 02/14/2019)
61 JOINT DISCOVERY PLAN by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 02/22/2019)
62 PRELIMINARY PRETRIAL STATEMENT by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 02/22/2019)

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02/22/2019 02/26/2019 03/05/2019 03/06/2019
03/15/2019 04/08/2019 04/09/2019 04/12/2019 04/12/2019 04/12/2019 04/12/2019 04/12/2019 04/12/2019 04/12/2019 04/24/2019 04/26/2019 05/03/2019 05/03/2019 05/03/2019 05/14/2019

63 PRELIMINARY PRETRIAL STATEMENT by Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Entered: 02/22/2019)
64 STATEMENT OF STIPULATED FACTS by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 02/26/2019)
MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Initial Pretrial Conference held on 3/5/2019. (LJF) (Entered: 04/01/2019)
65 SCHEDULING ORDER: To assist the Court in address and resolution of issues relevant to the case, plaintiffs are directed to file and serve, on or before April 5, 2019, a report (see order for complete details). Amended Pleadings and Joinder of Parties due by 5/3/2019. Discovery due by 6/28/2019. All pretrial motions, other than discovery motions, shall be filed and fully briefed on or before 8/30/2019. Proposed Pretrial Order due by 11/15/2019. Signed by Judge Sam E Haddon on 3/6/2019. (HEG) (Entered: 03/06/2019)
66 NOTICE by Ashley Davis, Michael DiFrancesco re 65 Scheduling Order,, Report Re: Plaintiffs' Citations (Ramaswamy, Rebecca) (Entered: 03/15/2019)
67 Brief/Response to Order re 65 Scheduling Order,, 66 Notice (Other) DEFENDANTS' RESPONSE TO PLAINTIFFS' REPORT RE: RELEVANT CITATIONS filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Tokerud, Hannah) (Entered: 04/08/2019)
68 AMENDED ANSWER to 42 AMENDED COMPLAINT by Tim Fox, Sarah Garcia, Michele Snowberger. (Tokerud, Hannah) (Modified to link to Amended Complaint.) (NOS) (Entered: 04/09/2019)
69 MOTION for Summary Judgment Rebecca Ramaswamy appearing for Plaintiffs Ashley Davis, Michael DiFrancesco (Ramaswamy, Rebecca) (Entered: 04/12/2019)
70 Statement of Undisputed Fact re: 69 MOTION for Summary Judgment by Ashley Davis, Michael DiFrancesco filed by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 04/12/2019)
71 Brief/Memorandum in Support re 69 MOTION for Summary Judgment filed by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 04/12/2019)
72 MOTION for Summary Judgment Robert Thomas Cameron appearing for Defendants Tim Fox, Sarah Garcia, Michele Snowberger (Cameron, Robert) (Entered: 04/12/2019)
73 Brief/Memorandum in Support re 72 MOTION for Summary Judgment filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Entered: 04/12/2019)
74 Statement of Undisputed Fact re: 72 MOTION for Summary Judgment , 73 Brief/Memorandum in Support. (Cameron, Robert) (Entered: 04/12/2019)
75 AMENDED DOCUMENT by Tim Fox, Sarah Garcia, Michele Snowberger. Amendment to 73 Brief/Memorandum in Support of Motion for Summary Judgment. (Cameron, Robert) (Modified to link to motion.) (NOS) (Entered: 04/12/2019)
76 Witness List by Tim Fox, Sarah Garcia, Michele Snowberger. (Cameron, Robert) (Entered: 04/24/2019)
77 Witness List by Ashley Davis, Michael DiFrancesco. (Telfeyan, Phil) (Entered: 04/26/2019)
78 RESPONSE to Motion re 72 MOTION for Summary Judgment Opposition filed by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 05/03/2019)
79 RESPONSE to Motion re 69 MOTION for Summary Judgment filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Tokerud, Hannah) (Entered: 05/03/2019)
80 Statement of Disputed Facts re: 79 Response to Motion filed by Tim Fox, Sarah Garcia, Michele Snowberger. (Tokerud, Hannah) (Entered: 05/03/2019)
81 Unopposed MOTION to Stay All Proceedings Rebecca Ramaswamy appearing for Plaintiffs Ashley Davis, Michael DiFrancesco (Attachments: # 1 Exhibit HB 217, # 2 Exhibit Proposed Order) (Ramaswamy, Rebecca) (Entered: 05/14/2019)

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05/15/2019
06/14/2019 06/17/2019

82 ORDER granting 81 Motion to Stay All Proceedings for thirty days, in light of the enactment by the Montana Legislature and signing into law by Governor Steve Bullock of HB217. Signed by Judge Sam E Haddon on 5/15/2019. (HEG) (Entered: 05/15/2019)
83 STIPULATION of Dismissal by Ashley Davis, Michael DiFrancesco. (Ramaswamy, Rebecca) (Entered: 06/14/2019)
NOTICE from the Clerk of Court's Office: On June 14, 2019, the parties filed a Stipulation of Dismissal (Doc. 83 ) signed by all parties who have appeared. Therefore, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), this case is dismissed in accordance with the filing of the Parties' Stipulation of Dismissal and without further order of the Court. (NOS) (Entered: 06/17/2019)

 
 Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 1 of 36

Phil Telfcyan (pro hac vice pending) Catherine Sevcenko (pro hac vice pending) Rebecca Ramaswamy (pro hac vice pending) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 ptelfcyan@equaljusticeunderlaw.org catherine@equaljusticeunderlaw.org rramaswamy@equaljusticeunderlaw.org

Robert Farris-Olsen (MT Bar No. 11937) Scott Peterson (MT Bar No. 11996) Attorneys, Morrison, Sherwood, Wilson & Deola, PLLP 401 N. Last Chance Gulch St. Helena, MT 59601 (406) 442-3261 rfolsen@mswdlaw.com speterson@mswdlaw.com

Attorneys.for PlaintiffMichael DiFrancesco

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

)

MICHAEL DiFRANCESCO, on behalf of )

himself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

STEVE BULLOCK, in his official

)

capacity as Governor of Montana;

)

TIM FOX, in his official capacity as

)

Attorney General of Montana;

)

SARAH GARCIA, in her official capacity )

as Administrator of the Motor Vehicle

)

Case No. CV- 11-/,t,-8U~S€ J.I
CLASS ACTION JURY DEMANDED

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 2 of 36

Division; and

)

MICHELE SNOWBERGER, in her

)

official capacity as Bureau Chief of the )

Driver Services Bureau,

)

)

Defendants.

)

CLASS ACTION COMPLAINT Introduction
1. This case is about the Motor Vchicle Division of the Montana Department of Justice ("the MVD") running a wealth-based driver's license suspension scheme that traps some of the state's poorest residents in a cycle of poverty. The MVD automatically and indefinitely suspends the driver's licenses of people who owe court-ordered fines, costs, and restitution even if they simply cannot afford pay. Without driver's licenses, people already facing the harsh realities of owing court debt while living in poverty face additional hurdles of being unable to drive to and from work, get their children to daycare, keep medical appointments, and care for their family members.
2. Although Montana's automatic suspension of driver's licenses is designed to coerce payment, for people who are unable to pay, the state's practice will never accomplish its intended goal; no incentive or punishment will increase the likelihood of a person paying a debt if he or she does not have the money. Penalizing people for being unable to pay court debts violates the Equal Protection
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Clause of the Fourteenth Amendment, the Due Process guarantee of fundamental fairness, Plaintiff's right to intrastate travel, and longstanding Supreme Court precedent. Montana has trapped Plaintiff Michael Difrancesco in an inescapable cycle of poverty by suspending his license, thereby severely limiting his job opportunities.
3. The MVD indefinitely suspends the driver's licenses of people who fail to pay court-ordered fines, costs, and restitution, even where nonpayment is solely due to indigence and thus not willful. Mont. Code Ann.§ 61-5-214(l)(b). A person whose license has been suspended for non-payment of fines or fees must pay $100 to the MVD before his or her license can be reinstated unless a court found the person indigent for the purposes of assigning a public defender. Mont. Code Ann.§ 61-5-218.
4. Anyone convicted of driving during a suspension period faces a mandatory jail sentence of between two days and six months plus a fine of up to $500. Mont. Code Ann. § 61-5-212(1)(b)(i). A conviction also carries a mandatory one-year extension of the suspension. Mont. Code Ann. § 61-52 l 2(2)(a).
5. These suspensions deprive some of Montana's poorest residents of their only reliable means of transportation to and from work, further diminishing their ability to meet their court-ordered financial obligations.
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Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 4 of 36
6. By and through his attorneys, on behalf of himself and others similarly situated, Plaintiff Michael Difrancesco seeks declaratory and injunctive relief against Defendants in their official capacities to end this unconstitutional wealth-based suspension scheme because it violates the Due Process and Equal Protection Clauses of the United States Constitution.
Nature of the Action 7. The Montana MVD automatically suspends the driver's licenses of people who fail to pay court-ordered fines, costs, and restitution, even if they are unable to pay the debts. Plaintiff seeks declaratory and injunctive relief prohibiting this wealth-based suspension scheme. 8. The MVD is violating Mr. Difrancesco's substantive due process rights, and those of people similarly situated, because it is fundamentally unfair to suspend people's driver's licenses solely because they are too poor to pay their court debts. 9. The MVD is violating Mr. DiFrancesco's substantive due process rights, and those of people similarly situated, because Montana citizens, regardless of wealth, have a fundamental right to intrastate travel in addition to the constitutional guarantee of interstate travel. Because there is no meaningful alternative to driving in Montana, the lack of a valid license necessarily impedes those rights without being narrowly tailored to a compelling government interest.
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10. The MVD is violating Mr. DiFrancesco's equal protection rights, and those of people similarly situated, because the state's suspension scheme lacks any rational basis. Suspending the driver's licenses of people too poor to pay court debt inhibits a person's ability to pay court debts, thus directly undermining the supposed governmental interest in obtaining payment.
11. The MVD is violating Mr. Difrancesco' s equal protection rights, and those of people similarly situated, because automatic driver's license suspensions constitute an extraordinary collection effort.
12. The MVD is violating Mr. DiFrancesco's procedural due process rights, and those of people similarly situated, because individuals have property interests in their driver's licenses that cannot be denied without notice and a hearing.
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 Michael Difrancesco is a 22-year-old resident of Bozeman, Montana, who has recently experienced homelessness. Exhibit 1, Difrancesco
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Deel. Mr. DiFrancesco's troubles began when he was fined $185 for a civil infraction he committed when he was only 14 years old. Since then, his court debt has ballooned to nearly $4,000 due solely to his inability to drive legally. Mr. Difrancesco cannot afford to pay this debt. Id.
16. Defendant Steve Bullock is the Governor of Montana. As Governor, Mr. Bullock is the head of the executive branch of the Montana state government and is responsible for enforcing state law. Mr. Bullock is sued in his official capacity as Governor.
17. Defendant Tim Fox is the Attorney General of Montana. As Attorney General, Mr. Fox is the head of the Montana Department of Justice, the state's top law enforcement and legal agency. Additionally, because the Montana MVD is a division of the Department of Justice, Mr. Fox oversees and is ultimately responsible for all actions of the MVD. Montana Department of Justice, https://dojmt.gov (last visited Aug. 31, 2017). Mr. Fox is sued in his official capacity as Attorney General.
18. Defendant Sarah Garcia is the Administrator of the Motor Vehicle Division of Montana. The MVD is a division of the Department of Justice and is responsible for "ensuring authentication for credentials, licenses, vehicles titled, and accountability of official records." Motor Vehicle Division, Montana
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Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 7 of 36
Department of Justice, https://dojmt.gov/driving (last visited Aug. 31, 2017). Ms. Garcia is sued in her official capacity as MVD Administrator.
19. Defendant Michele Snowberger is the Bureau Chief of the Driver Services Bureau of the Motor Vehicle Division. The Driver Services Bureau "administers all driver license records and actions" including suspensions. Motor Vehicle Division, Montana Department of Justice, https://dojmt.gov/driving (last visited Aug. 31, 2017). Ms. Snowberger is sued in her official capacity as Bureau Chief.
20. 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 Montana.
Factual Allegations A. Introduction
21. The MVD suspends the driver's licenses of people who fail to appear in court or fail to comply with a sentence - including payment of court-ordered fines, fees, and restitution - upon receipt of a report from a court. Mont. Code Ann.§ 61-5-214(1)(b).
22. The MVD imposes suspensions under MCA 61-5-214 for failure to pay regardless of the reason for nonpayment and without consideration of whether the person has the financial means to pay. Id.; see also Exhibit 2, Rutzke Aff.
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23. Suspensions for failure to appear or failure to pay fines are indefinite and continue until the court notifies the Department that the person has complied with the sentence, "including payment of any assessed fines, costs, or restitution." Mont. Code Ann. § 61-5-214(2)(a); see also Driver License Suspension, Motor Vehicle Division, Montana Department of Justice, https://dojmt.gov/driving/driverlicense-sanctions (last visited Aug. 31, 2017).
24. A valid driver's license is essential for people to secure and maintain employment, and the loss of a license often results in further financial hardship for individuals and their families. See Exhibit 2, Rutzkc Aff.
25. Research has consistently found that a driver's license 1s often necessary to maintain a job, pursue educational opportunities, and care for dependent relatives. See "Letter to Colleague" from Vanita Gupta & Lisa Foster, U.S. Department of Justice (Mar. 14, 2016). 1
26. An estimated 10,000 Montana residents have their licenses suspended each year because of failure to pay court debts. 2
27. Suspended licenses can trap people who are poor in an impossible situation: they cannot afford to reinstate their licenses without steady employment, but they are unable to work without licenses. See Exhibit 2, Rutzke Aff.
1 https://www.justice.gov/crt/file/832461 /download 2 Based on data from the Driver Services Bureau indicating that, in 2016, "19,280 drivers were suspended by the courts for failure to appear or failure to comply." Exhibit 3, E-mail from Patrick McJannct, Driver Services Deputy Bureau Chief.
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Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 9 of 36
28. Paying off court debt is particularly difficult for the 14% of Montana residents who live below the federal poverty line.3
29. Suspending licenses as a means of debt collection also puts public safety at risk, because law enforcement resources are devoted to stopping, investigating, and prosecuting suspended drivers who do not present a danger behind the wheel instead of pursuing individuals who do. B. Plaintiff's Debt
30. Named Plaintiff Michael Difrancesco 1s a resident of Bozeman, Montana. Exhibit I, Difrancesco Deel.
31. In 2008, when Mr. Difrancesco was 14 years old, he was convicted of violating Montana's "minor in possession" (MIP) law, a civil infraction. Id.; see also Exhibit 4, Bozeman Mun. Ct. Summary; Mont. Code Ann. § 45-5-624.
32. As penalty for his civil infraction, he was fined $185 and ordered to pay for and complete a community-based substance abuse information course. Exhibit 4, Bozeman Mun. Ct. Summary; see also Exhibit I, Difrancesco Deel.
33. At the time, Mr. Difrancesco could not afford to pay the fine or the fee for the course. Id.
34. Because he could not afford to comply with the sanction, Mr. Difrancesco received a notice from the MVD on January 14, 2009 "that pursuant
3
Montana 2016, Talk Poverty, https://talkpoverty.org/state-year-report/montana-2016-report/ (last visited Aug. 31, 2017).
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Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 10 of 36
to MCA 61-5-214, [his] driver's license and/or driving privilege [was] suspended indefinitely ... based upon notification that [he] failed to appear or pay fines, cost, and/or restitution as required by law from a court in Bozeman." Exhibit 5, Suspension Notice 2009.
35. The MVD further informed Mr. Difrancesco that he would need to satisfy all his court debts and "pay a $100 non-refundable reinstatement fee directly to the department as required by MCA 61-5-218(1)" before his license could be reinstated. Id.
36. Thus, Mr. Difrancesco was not able to obtain a learner's permit or provisional driver's license while he was under the age of 18, nor was he able to take a driving test and obtain a full Montana driver's license once he turned 18, as he still had outstanding court debt from his MIP. Exhibit 1, Difrancesco Deel.
37. Mr. Difrancesco has since paid the fine and completed the community service for his MIP. Exhibit 1, Difrancesco Deel.; see also Exhibit 4, Bozeman Mun. Ct. Summary. But he has not been able to pay off the many large fines he has been ordered to pay for driving without a valid license. Exhibit 1, Difrancesco Deel.; see also Exhibit 4, Bozeman Mun. Ct. Summary; Exhibit 6, Certified Driver Record.
38. Mr. Difrancesco 1s a construction worker and is unable to work consistently without being able to drive. Exhibit 1, Difrancesco Deel.
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Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 11 of 36
39. Lacking a valid license has caused Mr. Difrancesco to become unemployed.
40. Lacking a valid license has caused Mr. Difrancesco to become homeless.
41. Because he must work to cam money, he has been convicted of driving without a license five times in the past three years. Id.; see also Exhibit 6, Certified Driver Record.
42. Each conviction of driving without a valid license resulted in six points being added to Mr. Difrancesco's driving record, and he thus accrued 30 points within a three-year period. Exhibit 7, Habitual Traffic Offender Deel.
43. On October 5, 2016, the MVD declared Mr. Difrancesco a "Habitual Traffic Offender" due to the 30 points he had accrued for his many convictions for driving without a license and imposed a revocation of his driver's license for a period of three years, effective from the date of the letter. Id.
44. Mr. Difrancesco has never been charged with a movmg traffic violation or any violation related to road safety. Exhibit 1, Difrancesco Deel.; see also Exhibit 6, Certified Driver Record.
45. Mr. Difrancesco's inability to drive legally stems solely from his poverty; ifhe had had the money to pay his court-ordered debt in 2008 - or at any point thereafter until January of 2016 - he would have been able to restore his
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driving rights, and he would have avoided the convictions that led to the MVD declaring him a "habitual traffic offender." Exhibit 1, Difrancesco Deel.; see also Exhibit 6, Certified Driver Record.
46. Mr. Difrancesco still owes nearly $4,000 in unpaid fines for his "driving without a license" convictions. Exhibit I, Difrancesco Deel.
47. Mr. Difrancesco has also spent a total of about five months in jail for driving without a license. Id.
48. Because he has no driver's license, he has not had a job in about a year. Id.
49. As of this filing, he is not working and has no regular income. Id. 50. Because he is unable to work and has no regular mcome, Mr. Difrancesco does not have stable housing. Id. C. Montana's Wealth-Based Driver's License Suspension Scheme Traps Poor Residents in a Cycle of Poverty i. Defendants Suspend the Licenses of All People Who Fail to Pay
Their Court Debts, Even Those Who Are Too Poor to Pay 51. When a person does not pay a fine, court cost, or restitution, the MVD imposes a mandatory, indefinite suspension on the person's license. Mont. Code Ann.§ 61-5-214(l)(b).4
4
See also Driver License Suspension, Motor Vehicle Division, Montana Department of Justice, https :/Idojmt.govIdriving/driver- license-sanctions (stating same).
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52. Although a "person must be given written notice that the failure to appear on a criminal charge or comply with a criminal sentence may result in the suspension of the person's driver's license or driving privilege ... followed by a written warning from the court ... advising the person that a license suspension is imminent," Mont. Code Ann. § 61-5-214(3), there is no mention of any exception for those who can demonstrate that they are too poor to pay.
53. The court is not statutorily required to make any mqmry into the reason for nonpayment or a person's financial status before informing the MVD that the person has failed to pay court debts. In fact, courts do not make any such mqmry.
54. The MVD does not make any inquiry into the reason for nonpayment or a person's financial status before immediately suspending the license of the person.
55. No MVD official ascertains the reason for nonpayment or a person's financial status after suspending the license of the person.
56. A person may file a petition within 30 days after suspension for a hearing in the district court in the county where the person resides. Mont. Code Ann. § 61-5-211. But the suspension notice contains no mention of this right to a hearing, see Exhibit 5, Suspension Notice 2009, so there is no guarantee that an individual whose license has been suspended will even be aware of this right.
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Moreover, the court in such a hearing is tasked with "tak[ing] testimony and examin[ing] the facts of the case and determin[ing] whether the petitioner 1s entitled to a driver's license," with no mention of hearing evidence on ability to pay or making a determination of indigence. Mont. Code Ann. § 61-5-211.
57. People whose licenses are suspended because of failure to appear or comply with a sentence, including payment of fines, costs, or restitution, are not eligible to receive provisional, restricted, or probationary licenses. Mont. Code Ann.§ 61-5-215.
ii. Defendants Will Not Reinstate a License Suspended for Nonpayment of Court Debts Until the Person Has Paid a $100 Fee in Addition to All Court Debts Owed
58. Suspensions for failure to pay court debts are indefinite; they continue until the court notifies the MVD that the person has complied with the sentence, "including payment of any assessed fines, costs, or restitution." Mont. Code Ann. §§ 61-5-214(2)(a) and 61-5-216.
59. A driver whose license has been suspended must pay a reinstatement fee of $100 to the Department before it can be restored. Mont. Code Ann. § 61-5218(1).
60. The MVD waives the reinstatement fee if a court has determined the person qualifies for a public defender. Mont. Code Ann. §§ 47-1-111; 61-5-
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Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 15 of 36
218(2)(c). But most fines are imposed for civil infractions, such as traffic tickets, which do not trigger appointment of counsel.
iii. A Person Who Drives While His or Her License Is Suspended Faces Imprisonment, Fines, and an Additional Period of Suspension
61. A person convicted of driving without a valid license faces mandatory imprisonment from two days up to six months and may be fined up to $500. Mont. Code Ann.§ 61-5-212(1)(b)(i).
62. A conviction of driving while one's license is suspended also carries a mandatory one-year extension of the period of suspension. Mont. Code Ann.§ 615-212(2)(a).
63. Courts do not have the authority to suspend or defer the imposition of penalties for driving with a suspended license. Mont. Code Ann.§ 61-5-212(6).
64. Driving while one's license is suspended is an absolute liability offense in Montana, and people are frequently convicted of the offense even when they never received notification that their license had been suspended. Exhibit 2, Rutzke Aff.
65. A conviction for driving while one's license is suspended results in six points being added to one's driving record, which may result in required
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counseling or retaking the driving examination or both.5 Failure to comply with, and pay for, these additional requirements will result in an additional three-month license suspension.
iv. A Person Who Accumulates Thirty Points on His or Her Driving Record Within a Three-Year Period Is Declared a "Habitual Traffic Offender" and Faces a Three-Year License Revocation
66. Under Montana law, a "habitual traffic offender" is "any person who within a 3-year period accumulates 30 or more conviction points." Mont. Code Ann.§ 61-ll-20(b).
67. "After it declares a person to be a habitual offender, the department shall revoke the person's driver's license or driving privilege for a period of 3 years from the date of the declaration." Mont. Code Ann. § 61-11-211.
v. License Suspensions Drive People Further into Poverty and Invite Further Infractions
68. Montana's wealth-based suspens10n scheme imposes significant hardship on debtors and their families, often forcing them to choose between paying for food, shelter, health care, and clothing, or paying their court costs and fines.
5
The Driver's License Point System in Montana, Driving Laws Published by Nolo, http://www. drivinglaws.org/resourccs/the-drivers-license-point-system-montana.htm (last visited Aug. 31, 2017).
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69. Because they cannot pay fines, poor drivers are over-represented in the pool of suspended drivers when compared to the general population of licensed drivers.
70. People whose licenses are suspended because of failure to appear or failure to comply with a sentence, including payment of fines, costs, or restitution, are not eligible to receive provisional, restricted, or probationary licenses. Mont. Code Ann.§ 61-5-215.
71. 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).6
72. Indeed, a rigorous study of New Jersey drivers found that 42% of drivers lost their jobs after their driver's licenses were suspended. Jon A. Carnegie, Ian M. Voorhees Transportation Center, Rutgers, The State University of New Jersey, Driver's License Suspensions, Impacts and Fairness Study 56 (2007).7
73. Of those drivers, 45% were unable to find new employment. Id. 74. Of those that were able to find another job, 88% reported a decrease in income. Id.
6
https ://www.theatiantic. com/business/archive/20 16/06/no-drivers-1 icensc-no-job/4 86653/
7
http://www.nj.gov/transportation/refdata/research/rcports/FHWA-NJ-2007-020-Vt .pdf 17

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75. In many cases, Montana's wealth-based suspens10n scheme forces suspended drivers to choose between driving illegally and losing their jobs. See Exhibit 2, Rutzke Aff.
76. In Montana, driving on a suspended license is a criminal offense, with a violation carrying a mandatory prison sentence of up to six months and a fine of up to $500. Mont. Code. Ann.§ 61-5-212(l)(b)(i).
77. Thus, Montana's wealth-based suspens10n scheme creates a downward spiral from poverty to criminal culpability: an unpaid civil infraction ticket triggers automatic suspension, which often leads to the offense of driving without a valid license.
78. The high cost of losing a driver's license inevitably results in an impossible choice: drive - and risk being charged with driving while suspended, which itself can lead to additional costs, fines, and periods of incarceration - or refrain from driving and lose access to gainful employment and medical care.
vi. Montana's Vast Rural Landscape Exacerbates the Hardships of Living Without a License
79. At 145,545 square miles, Montana is the fourth-largest state in the United States.8 With only 6.5 people per square mile, it is one of the most sparsely-populated states - ranking 48th in population density. 9
8 Quick Facts: Montana, United States Census Bureau, https://www.census.gov/quickfacts/table/PST045216/30 (last visited Aug. 31, 2017).
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80. Without the ability to drive, most jobs are inaccessible to people living in Montana. Even in cities where some public transportation options are available, getting to and from work without the ability to drive is extremely challenging and time-consuming, ifit is possible at all. See Exhibit 2, Rutzke Aff.
81. In fact, the Census Bureau estimates that nearly three-quarters of Montana commuters drive themselves to work while only 5.6 percent walk, and a scant 0.8 percent use public transit. 10 D. Montana's Wealth-Based Suspension Scheme Violates Plaintiff's Equal
Protection and Due Process Rights 82. Defendants' indefinite suspension of Mr. DiFrancesco's driver's license because of his inability to pay court debts violates his constitutional rights under the Equal Protection and Due Process Clauses. i. Defendants' Wealth-Based Suspension Scheme Violates Due
Process Because It Lacks Fundamental Fairness 83. The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process oflaw." U.S. Const. amend. XIV,§ 1.
9 How Dense Could We Be? Census and Economic Information Center, http://ceic.mt.gov/Documents/Maps/Population/PopDensityComparisonOO.pdf. 10 "Commuter Transportation," Montana, DataUSA, https://datausa.io/profile/geo/montana (last visited Aug. 31, 2017).
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84. The Due Process Clause prohibits the state from subjecting individuals to processes and penalties that fail to comport with principles of due process and fundamental fairness.
85. Suspending Mr. Difrancesco' s license for failing to pay court debts that he cannot afford is fundamentally unfair. See, e.g., Bearden v. Georgia, 461 U.S. 660, 660 (1983) (holding that it is fundamentally unfair 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 is fundamentally unfair 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 is fundamentally unfair to jail a person for inability to pay a fine); Williams v. Illinois, 399 U.S. 235, 240-41 (1970) (holding that it is fundamentally unfair to imprison a person beyond the maximum period fixed by statute solely because he cannot pay fines or court costs).
86. Montana suspends driver's licenses without first determining whether the nonpayment was willful or whether the person was simply too poor to pay.
87. The MVD enforces Montana's wealth-based suspension scheme without considering the debtor's ability to pay or offering any alternatives.
88. Thus, Montana's wealth-based suspension scheme inevitably results in individuals being punished for their inability to pay.
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89. By converting a relatively modest penalty (e.g., a $185 civil infraction fine) into a serious deprivation (an indefinitely suspended driver's license), Montana unfairly penalizes people who are poor simply for being poor.
90. Punishing a person solely for his or her inability to pay violates principles of due process and fundamental fairness.
91. Accordingly, Defendants' wealth-based suspension scheme violates the Due Process Clause.
ii. Defendants' Wealth-Based Suspension Scheme Violates Due Process Because It Infringes on Plaintiff's Fundamental Right to Travel
92. Mr. Difrancesco has a fundamental due process right to intrastate travel. See, e.g., Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002); see also In re Marriage of Guffin, 209 P.3d 225, 228 (Mont. 2009) (holding "that the right to travel guaranteed by the United States Constitution includes the right to travel within Montana").
93. Plaintiff lives in a large, sparsely-populated, rural state where public transportation is extremely limited.
94. Plaintiff cannot afford to pay for taxis or other car services for daily commuting and living.
95. Due to Montana's weather conditions, non-motorized modes of transport, such as walking or biking, are not feasible alternatives during the winter.
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96. Thus, Plaintiffs only reliable form of transportation 1s to drive a personal vehicle.
97. Defendants have suspended Plaintiffs license simply because he is unable to pay his debts and therefore have impeded his fundamental right to intrastate travel.
98. Because it implicates a fundamental liberty interest, Defendants' suspension scheme must be narrowly tailored to achieve compelling state objectives.
99. 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.
100. While the collection of court-ordered debt is a significant state interest, suspending the driver's licenses of those who cannot pay is not narrowly tailored to collection. Indeed, it is counterproductive because it hampers Plaintiffs ability to make a living and pay his essential expenses, thus decreasing his ability to pay court debts.
IOI. Accordingly, Defendants' wealth-based suspens10n scheme violates the Due Process Clause.
iii. Defendants' Wealth-Based Suspension Scheme Violates Equal Protection Because It Discriminates Against Poor People Without a Rational Connection to a Legitimate State Purpose
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102. The Due Process Clause protects against arbitrary and capnc10us government action even when the decision to take action follows adequate procedures.
103. A person has protected property and liberty interests m a driver's license and its attendant government-sanctioned ability to drive. See Bell v. Burson, 402 U.S. 535 (1971 ); see also Alaska Airlines, Inc. v. City ofLong Beach, 951 F.2d 977, 986 (9th Cir. 1991); State ex rel. Majerus v. Carter, 693 P.2d 501, 503-504 (Mont. 1984).
I04. Montana's wealth-based suspension scheme is not rationally related to any legitimate government objective because suspending driver's licenses impedes lower-income workers from obtaining or maintaining employment in order to meet their financial obligations to the court.
I05. Driver's licenses are often essential in the pursuit of a livelihood, and their suspension threatens important interests of the people who hold them.
I06. The purpose of licensing drivers is to promote safety by keeping dangerous drivers off Montana's roads.
107. Suspending licenses is counterproductive to Montana's interests in collecting debt from indigent residents because it prevents such residents from working.
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I08. For poor debtors, avoiding driver's license suspens10n does not operate as an incentive to pay when they must choose between paying the court and paying rent, buying medication, feeding their families, and other necessary expenses.
109. Indeed, for people who cannot pay court debt, 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 court debt.
110. The loss of a license often means the loss of reliable transportation to and from work, which makes debtors less able to meet their financial obligations to the court.
111. Suspending driver's licenses - especially for people who are poor causes unemployment and homelessness and thus exacerbates a cycle of poverty.
112. By increasing unemployment, homelessness, and the cycle of poverty, Montana's scheme is directly contrary to its own interest because it undermines people's ability to repay court debt. By decreasing the state's chances of recoupmg court debt, Montana's scheme is counterproductive and therefore irrational.
113. Montana's wealth-based suspension scheme violates the Due Process Clause of the United States Constitution because it causes substantial hardship to
24

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 25 of 36
poor drivers and bears no rational relationship to any legitimate government objective.
iv. Defendants' Wealth-Based Suspension Scheme Violates Equal Protection Because It Constitutes Extraordinary Collection
114. When governments seek to recoup the costs of prosecution from indigent defendants, t4(y may not use unduly harsh methods of debt collection solely because the debt is owed to the government and not to a private creditor. See James v. Strange, 407 U.S. 128 (1972); see also State v. Ellis, 167 P.3d 896, 899-900 (Mont. 2007) (suggesting that a recoupment scheme may implicate equal protection if there is no consideration of whether the debtor is able to pay and if the debtor has no opportunity to petition the court for remission of payment of debts "on grounds that it will impose manifest hardship").
115. Fines penalize unlawful behavior; similarly, restitution compensates a victim. By contrast, court costs subsidize court operations and thus are ordinary private consumer debts incurred for services rendered.
116. When a private creditor seeks to enforce a judgment against a debtor via garnishment or lien, the law provides procedural and substantive protections for poor debtors against deprivation of certain basic necessities and the ability to maintain a livelihood.
117. The private creditor may coerce payment only to the extent permitted by those protections.
25

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 26 of 36
118. Montana's wealth-based suspension scheme does not treat indigent defendants, to the extent that they owe court costs, like other judgment debtors.
119. Montana's wealth-based suspension scheme provides for suspension of the debtor's driver's license and the possibility of imprisonment.
120. When the State of Montana, through Defendants' actions, takes advantage of the machinery of government to strip debtors of their driver's licenses, it coerces payment in a way that is unavailable to private creditors for debts unrelated to driving. Thus, it denies debtors who owe court costs the procedural and substantive statutory protections that other Montana debtors may invoke against a private creditor in ordinary debt collection proceedings.
121. Montana's wealth-based suspension scheme fails to offer poor debtors the substantive and procedural protections that prevent private creditors from denying debtors the ability to maintain their livelihoods and meet their basic needs.
122. The State of Montana's severe and coercive collection policies and practices discriminate against poor debtors and violate the fundamental principle of equal protection of the laws embedded in the United States Constitution.
v. Defendants' Wealth-Based Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing
123. 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
26

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 27 of 36
(1971 ); see also Alaska Airlines, Inc. v. City ofLong Beach, 951 F.2d 977, 986 (9th Cir. 1991); State ex rel. Majerus v. Carter, 693 P.2d 501, 503-504 (Mont. 1984).
124. Due process requires the State of Montana to conduct ability-to-pay inquiries at each stage in a case, including the point at which it proposes to take coercive action to punish nonpayment.
125. The state's wealth-based suspension scheme imposes mandatory costs without consideration of ability to pay. Instead, Defendants suspend a person's driver's license upon receiving a notice a court that that person has failed to pay court debts. Mont. Code Ann.§ 61-5-214(1)(b).
126. Prior to suspending a debtor's driver's license, the MVD does not inform the debtor of any right to an ability-to-pay hearing.
127. Moreover, Defendants do not independently review the debtor's ability to pay before or after enforcing the harsh punishment of suspension.
128. The purpose of the state's wealth-based suspension scheme 1s to coerce payment, not to protect public safety on the roads. Therefore, Mr. DiFrancesco and others similarly situated are entitled to pre-deprivation notice and a hearing prior to license suspension.
129. There is currently no hearing required under Montana law for those facing driver's license suspension for unpaid court debt, creating a high risk that
27

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 28 of 36
indigent debtors will be deprived of their driver's licenses for reasons directly attributable to their poverty.
130. The high risk of deprivation created by Defendants' automatic, onesize-fits-all driver's license suspension system violates the Due Process Clause of the United States Constitution.
Class Action Allegations 131. The named Plaintiff brings this action, on behalf of himself and all others similarly situated, to assert the claims alleged in this Complaint on a common basis. 132. A class action is a superior means, and the only practicable means, by which the named Plaintiff and unknown Class Members can challenge Defendants' unlawful wealth-based suspension scheme. 133. 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. 134. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 135. Plaintiff proposes one Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All Montana residents who did not receive an ability to pay hearing before the suspension of their driver's licenses
28

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 29 of 36
and whose driver's licenses are currently suspended, or will be suspended, solely for unpaid court debts. The proposed Class should include only those whose actions did not warrant automatic suspension upon the commission of the underlying offense, but instead resulted only from the non-payment of court debts. A. Numerosity- Fed. R. Civ. P. 23(a)(l)
136. On information and belief, over 10,000 Montana residents have their licenses suspended each year for inability to pay court debts. B. Commonality - Fed. R. Civ. P. 23(a)(2)
137. The relief sought is common to all Class Members, and common questions of law and fact exist as to all Class Members. The named Plaintiff seeks relief concerning whether the automatic suspension scheme violates the rights of the Class Members and relief mandating that Defendants end the scheme so that the constitutional rights of the Class Members will be protected in the future.
138. These common legal and factual questions arise from one scheme: Defendants' automatic suspensions based on inability to pay court debts. The material requirements of the suspension 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.
139. Among the most important, but not the only, common questions of fact are:
29

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 30 of 36
• Whether Montana has a policy and practice of punishing poor people more harshly than wealthy people for failing to pay court debt;
• Whether Montana, acting by and through Defendants, 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 Montana, acting by and through Defendants, exploits its governmental status to avail itself of forms of enforcement in the collection of court debts not available to most private civil creditors.
140. Among the most important, but not the only, common questions of
law are:
• Whether fundamental principles of due process and equal protection require Montana to take into account a person's ability to pay court costs and fines;
• Whether suspending a person's driver's license solely because she or he cannot afford to make a monetary payment toward court costs and fines previously imposed is lawful;
• Whether a person is entitled to a meaningful inquiry into his or her present ability to pay court costs and fines previously imposed, before Defendants suspend his or her license for nonpayment; and
• Whether depriving persons encumbered with court debt of the protections afforded other Montana debtors when taking the harsh action of suspending their driver's licenses for nonpayment violates the Equal Protection Clause.
C. Typicality - Fed. R. Civ. P. 23(a)(3)
141. The named Plaintiffs claims are typical of the other Class Members'
claims, and he has 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 court debts. The answer to whether Defendants' wealth-based
30

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 31 of 36
suspension scheme is unconstitutional will determine the claims of the named Plaintiff and every other Class Member.
142. If the named Plaintiff succeeds in the claim that the MVD's policies and practices concerning wealth-based suspension violate his constitutional rights, that ruling will likewise benefit every other Class Member. D. Adequacy - Fed. R. Civ. P. 23(a)(4)
143. The named Plaintiff is an adequate representative of the Class because his interests in the vindication of the legal claims that he raises are entirely aligned with the interests of the other Class Members, who each have the same basic constitutional claims. He is a member of the Class, and his interests coincide with, and are not antagonistic to, those of the other Class Members.
144. 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' wealth-based suspension scheme.
145. Plaintiff is represented by attorneys from Equal Justice Under Law and Morrison, Sherwood, Wilson & Deola, PLLP, 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.
31

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 32 of 36
146. The combined efforts of Class counsel have so far included extensive investigation into Defendants' suspens10n scheme, including interviewing attorneys m the reg10n, statewide experts in the functioning of state and local courts, and national experts m constitutional law, law enforcement, judicial procedures, and criminal law.
147. Class counsel have a detailed understanding oflocal law and practices as they relate to federal constitutional requirements.
148. 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 the named Plaintiff and his attorneys. E. Rule 23(b)(2)
149. 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 wealth-based suspension scheme: wealthy Montana residents who are ordered to pay costs, fees, fines, and restitution by the courts are able to retain their driver's licenses, while the poorest residents are further forced into a cycle of poverty.
150. The Class therefore seeks declaratory and injunctive relief to enjoin Defendants from enforcing the automatic suspensions and reinstatement fees.
32

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 33 of 36
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.
151. 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 suspend driver's licenses as a punishment for being poor 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: Defendants' Wealth-Based Suspension Scheme Violates Due Process Because It Lacks Fundamental Fairness
152. Plaintiff incorporates by reference each and all of the previous allegations in this Complaint.
153. The Fourteenth Amendment's Due Process Clause reqmres that Montana maintain a standard of fundamental fairness in its justice system. Defendants' automatic suspensions for failure to pay court debts punishes people simply for being too poor to pay, which violates the principle of due process because it is fundamentally unfair. Count Two: Defendants' Wealth-Based Suspension Scheme Violates Due Process Because It Infringes on Plaintiff's Fundamental Right to Intrastate Travel
33

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 34 of 36
154. Plaintiff incorporates by reference each and all of the previous allegations in this Complaint.
155. Mr. Difrancesco and others similarly situated have a fundamental right to intrastate travel. Because they have no viable alternative to driving, Defendants' suspension of their licenses implicates their right to intrastate travel, and this suspension is not narrowly tailored to meet the state objective of debt collection. Count Three: Defendants' Wealth-Based Suspension Scheme Violates Equal Protection Because It Discriminates Against Poor People Without a Rational Connection to a Legitimate State Purpose
156. Plaintiff incorporates by reference each and all of the prev10us allegations in this Complaint.
157. Mr. Difrancesco and others similarly situated have protected property and liberty interests in having driver's licenses and the ability to drive legally. Defendants' counterproductive collection method of suspending people's licenses when they are unable to pay court debts is not rationally related to a legitimate state interest and is therefore unconstitutional. Count Four: Defendants' Wealth-Based Suspension Scheme Violates Equal Protection Because It Constitutes Extraordinary Collection
158. Plaintiff incorporates by reference each and all of the prev10us allegations in this Complaint.
34

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 35 of 36
159. Mr. DiFrancesco's equal protection rights are implicated when the
State of Montana uses its unique position as a government to use debt collection
methods that are not available to private creditors. By stripping Mr. Difrancesco
and others similarly situated of their driver's licenses as a means of collection,
Defendants are violating their constitutional rights under equal protection.
Count Five: Defendants' Wealth-Based Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing
160. Plaintiff incorporates by reference each and all of the previous
allegations in this Complaint.
161. Mr. DiFrancesco and others similarly situated have protected property
and liberty interests in their driver's licenses and their ability to drive legally.
Defendants violate procedural due process rights by suspending licenses without
establishing an ability to pay.
Requested Relief
WHEREFORE, Plaintiff requests 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;
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 court debt against Plaintiff and Class Members
35

Case 2:17-cv-00066-SEH Document 1 Filed 08/31/17 Page 36 of 36
until such time as the State of Montana implements a system that complies with the United States Constitution; c. An order and judgment preliminarily and permanently ordering Defendants to reinstate the Plaintiffs and Class Members' driver's licenses (insofar as they are suspended based on unpaid court debt and/or on driving on licenses suspended due to unpaid court debt) and enjoining Defendants from requiring Plaintiff and Class Members to pay the reinstatement fees as a condition of such reinstatement; 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,
Isl Phil Telfeyan Phil Telfeyan (pro hac vice pending) Catherine Sevcenko (pro hac vice pending) Rebecca Ramaswamy (pro hac vice pending) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 ptelfeyan@equaljusticeunderlaw.org catherine@equaljusticeunderlaw.org rramaswamy@equaljusticeunderlaw.org
Isl Robert Farris-Olsen Robert Farris-Olsen (MT Bar No. 11937) Scott Peterson (MT Bar No. 11996) Attorneys, Morrison, Sherwood, Wilson & Dcola, PLLP 401 N. Last Chance Gulch St. Helena, MT 59601 (406) 442-3261 rfolsen@mswdlaw.com speterson@mswdlaw.com
Attorneys for Plaintiff
36

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 1 of 13
EXHIBIT 1: DiFRANCESCO DECLARATION

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 2 of 13
DECLARATION OF MICHAEL DiFRANCESCO I, Michael DiFrancesco, state and declare as follows:
l. My name is Michael DiFrancesco, and I am a 22-year-old resident of Bozeman, Montana.
2. I was born on December 8, 1994. 3. In 2008, when I was 14 years old, I was convicted of violating Montana's "minor in
possession" law. I was ordered to pay a fine, to complete 20 hours of community service, and to pay for and complete a substance abuse information course. 4. I was not able to pay the fine or pay for the course. 5. As a result of my failure to comply with the terms of my MIP sentence, I was not able to obtain a learner's permit or a provisional license when I turned 15. 6. When I turned 18 in 2012, I was not able to take a driving test and obtain a full driver's license because I still had outstanding debt from my 2008 MIP. 7. I recently completed my community service for my 2008 MIP. 8. I work in construction and need to be able to drive to reach my work sites and haul materials from site to site. 9. My most recent job was a roofing job in Spokane, Washington. That was about one year ago. I0. I am not working consistently right now, and my only income is the money I earn occasionally working for a friend. 11. In July of2017, my total income for the month was only $280. 12. Because I have no consistent income, my housing has been unstable, and I have recently experienced homelessness. 13. Because I need to drive to get to work, I have been convicted of driving without a license five times over the last three years. 14. Because of these many convictions, the MVD has declared me a "habitual traffic offender" and revoked my driving rights for 3 years, effective October 6, 2016. 15. I have never been charged with a moving traffic violation. 16. I currently owe almost $4,000 in unpaid fines for my many "driving without a license" convictions.
17. I am currently on a payment plan and owe monthly payments of$100 toward my court debt. With help from my mother, I have been making these payments in recent months.

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 3 of 13
18. Over the years, I have spent a total of about five months in jail for driving without a license.
I declare under penalty of perjury that the statements above are true and correct. Executed on this 2Z day of August, 2017.
Michael Difrancesco

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 4 of 13
EXHIBIT 2: RUTZKE AFFIDAVIT

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 5 of 13
AFFIDAVIT OF RYAN RUTZKE
I, Ryan Rutzke, state and declare as follows:
1. My name is Ryan "Buddy" Rutzke, and I am a resident of Bozeman, Montana.
2. I am an Assistant Public Defender in Region 8 of the Office of the State Public Defender [hereinafter "OSPD"].
3. l previously served as an Assistant Public Defender in Region 4 ofthe OSPD in Helena, Montana.
4. The statutory mission of the OSPD is "to provide effective assistance of counsel to indigent criminal defendants and other persons in civil cases who are entitled by law to assistance of counsel at public expense." Mont. Code Ann. § 47-1-102(1 ). We also exercise ethical duties of seeking improvement of the law, furthering the public's confidence in the rule of law, and equal access to justice.
5. As a public defender, I have observed that the State of Montana relies heavily on driver's licenses suspensions to punish people for failing to pay court debts or missing a court date, even if there is not enough information to conclude that the absence was knowing and voluntary.
6. I have represented many people who have no moving violations but, because they could not afford to pay their court debts, have no prospect of being able to drive legally in the foreseeable future.
7. When comts suspend a person's driver's license in Montana, that person is required to pay a $100 reinstatement fee pursuant to Mont. Code Ann. § 61-5-218(1).
8. When a person fails to pay a fine on time or in full, they typically also incur fmther fines, fees, interest, and/or collections costs.
9. Comt and prosecutor practices around the state vary wide!y with regard to suspending driver's licenses, sentencing, and use of collections.
I0. Many people who lose their driver's licenses are unable to get to work, court, school, or take care of their families without driving because of the rural nature of our state and lack of viable public transpmtation. People who have physical or mental health problems, lack of reliable vehicle, stable housing or communication options, or are single parents are especially affected by this predicament.
11. Many people who lose their driver's licenses choose to drive illegally in order to take care of life's necessities and ty attempt to comply with court sentences and orders.
12. When a person is caught driving while their license is suspended, they are guilty of driving while license suspended pursuant to Mont. Code Ann. § 61-5-212, incur further fines, fees, and costs, frequently spend time in jail, and their licenses are suspended for an additional year. Frnthermore, they are also assessed six points off their driving

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 6 of 13

record pursuant to Mont. Code Ann. § 61-11-203(2)(e) and may be declared a habitual traffic offender and lose their licenses for three years.

13. Many of my clients whose licenses are suspended experience further collateral consequences, and it is not uncommon for a person to lose his or her job or be unable to search for or secure a job.

14. I have had chronic driving while suspended clients who have spent months in jail on a single driving while suspended charge.

15. Since City of Kalispell v. Omyer, 2016 MT 63, 383 Mont. 19, 368 P.3d 1165 (2016) was issued, the offense of driving while suspended is considered an absolute liability offense. Since then, 1 have frequently represented people who were found guilty of driving with a suspended license despite never having been notified of the suspension.

16. Because Mont. Code Ann. § 61-5-212(1 )(a)(ii) criminalizes driving "when the person's privilege to drive or apply drive or apply for and be issued a driver's license is suspended or revoked in this state or any other state," (emphasis added), I have also represented many people who were found guilty of driving while suspended even though they had valid Montana driver's licenses but another state had suspended their privilege there.

17. Driver's license suspensions routinely force people who arc already struggling financially further into poverty, especially in a place like Bozeman, which has an extraordinarily high cost of living.

I declare under penalty of perjury that the statements above are true and correct.

~ /3 I j,_ ItJ 7

/?2c:Z~2-__

Date

Ryan "B\/cldy" Rutzke

STATE OF MONTANA

)

) ss:

Bozeman, County of Gallatin

)

, S}On this ,dl__ day of

~ U-~VJ.::>1,-

,...,
. , 201-t_, before me, a Notary Public for

the State of Montana, personally apped P.yu..-i '5w±Nf ()u:-t;z,1-\e,

, known to

me to be the person whose name is subscribed to the within instrument and acknowledged to me

that he/she executed the same.

Notary Public for the State of Mtana
Residing at 1'.2o=ff\O-D
My Commission expires (,, I I 3 ) J o z£i

.:'/\Y'·~~·r·~·R· "·'?'~<·''....

DIANA TYRRELL
Notary Public

:· Q:~oT AR/>4~·.: ':for the State of Montana

·
\

..~:

-·-

~

..SEAL_.;,::.:

Residing at:
Bozeman, Montana

~-;;~ · .. ·d.S'.'t_/· My Commission Expires:

''-,~,~.,,.''

June 13, 2020

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 7 of 13
EXHIBIT 3: EMAIL FROM PATRICK
McJANNET, DRIVER SERVICES DEPUTY
BUREAU CHIEF

8/2812017

Case 2:17-cv-0006E6q-uSalEJuHsticeDUnodceruLmaweMnatil -1D-r2iver FLicielensde S0u8sp/e3n1si/o1n7DataPage 8 of 13
Interns @EJUL <interns@equaljusticeunderlaw.org>

Driver License Suspension Data
McJannet, Patrick <pmcjannet@mt.gov> To: "Snowberger, Michele" <MSnowberger@mt.gov>, "interns@equaljusticeunderlaw.org" <interns@equaljusticeunderlaw.org>
Mr. Shepard.

Mon, Jul 10, 2017 at 1:21 PM

As of June 30, 2016 there were a total of 56,301 driving records showing suspended.

For the calendar year 2016:
• 4,560 drivers were suspended for alcohol or drug offenses • 19,280 drivers were suspended by courts for failure to appear or failure to comply • 716 drivers were suspended because of child support or unsatisfied judgements

let me know if you have any questions.

Patrick McJannet Driver Services Deputy Bureau Chief (406)438-6809

From: Snowberger, Michele Sent: Monday, July 10, 2017 9:20 AM To: interns@equaljusticeunderlaw.org Cc: McJannet, Patrick <pmcjannet@mt.gov>
[Quoted text hiddenJ
[Quoted text hidden)

https://mail .google .com/mail/u/O/?ui=2&ik=b1e744257e&jsver=PX1Y7GgZJW4.en.&view=pt&msg=15d2d85c0c1 c400b&q=mcjannet&qs=true&search=... 111

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 9 of 13
EXHIBIT 4: BOZEMAN MUNICIPAL
COURT SUMMARY

Date: 8/23/2017 Time: 11:14AM Page 1 of 2

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17
Bozeman Municipal Court Party Detail Summary
Criminal and Civil Cases

Page 10 of 13

Difrancesco. Mirh:::u:al _lncAph
~----------

SSN: MT

Case: TK-115-2008-01474 Judge: Karl P Seel

Defendant

Closed pending clerk action

Filing Date: 3/10/2008

Charge

Degree Disposed Plea

Finding

Citation

Possessing Intoxicating Substances While Ur

3/17/2008 Guilty Guilty

A237601

Issued: 317/2008

Fines/Fees:

185.00 Paid: 185.00 Balance:

0.00

Driver

Sentencing

Complete by Completed

Community Corrections 911312008 6/29/2016 Completed

Adolescent Resource Cent19/17/2008

Fee due date: 9/17/2008

0.00

0.00

0.00

Case Total: - Ca- se:- TK- -1- 15-- 20- 15-- 01- 211-------- De- fen- da- nt -~

185.00 Paid: 185.00 Balance:

0.00

D- is- pos- ed------~-----~

Judge: Karl P Seel

Filing Date: 311012015

Charge

Degree Disposed Plea Finding

Driving a Motor Vehicle While Privilege To Do MISC 3118/2015 Guilty Guilty

Issued: 3/812015

Fines/Fees:

535.00 Paid: 120.00

Jail time Years:

Months 6 Days: 2

Citation A310529 Balance: 415.00

Case: TK-115-2015-02805 Judge: Karl P Seel

Case Total:

535.00 Paid:

Defendant

Disposed

Filing Date: 6/30/2015

120.00 Balance-: - -415-.00- -

Charge

Degree Disposed Plea

Finding

Citation

Driving a Motor Vehicle While Privilege To Do MISC 6130/2015 Guilty Guilty

A319834

Issued 6/2912015

Fines/Fees:

535.00 Paid:

0.00 Balance: 535.00

Jail time Years:

Months 6 Days: 2

Sentencing

Complete by Completed

Community Corre<:tions 10/1/2015

Operating Without Liability Insurance In Effec MISC 6130/2015 Guilty Guilty

A319835

Issued: 6/29/2015

Fines/Fees:

385.00 Paid:

0.00 Balance: 385 00

Jail time Years:

Months O Days: 10

Case: TK-115-2015-05544 Judge: Karl P Seel

Case Total:

920.00 Paid:

Defendant

Disposed

Filing Date: 12/21/2015

0.00 Balance: 920.00

Charge

Degree Disposed Plea

Finding

Driving a Motor Vehicle While Privilege To Do MIS[ 9/28/2016 Guilty Guilty

Issued: 12/19/2015

Fines/Fees:

335.00 Paid:

0.00

Jail time Years:

Months 6 Days: 3

Citation A322568 Balance: 335.00

Case Total:

335.00 Paid:

0.00 Balance: 335.00

Date: 8/23/2017 Time: 11:14AM Page2 of2

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17
Bozeman Municipal Court Party Detail Summary
Criminal and Civil Cases

Page 11 of 13
'.

Difrancesco, Michael Joseph

DOB: 12108/1994

SSN:

Case: TK-115-2016-00411 Judge: Karl P Seel

Defendant

Disposed

Filing Date: 1/29/2016

Charge

Degree Disposed ~

Finding

Driving a Motor Vehicle While Privilege To Do MIS[ 9/2812016 Not Guilty Guilty

Issued: 1/28/2016

Fines/Fees:

285.00 Paid:

0.00

Jail time Years:

Months 6 Days: 5

Citation 012N001007 Balance: 285.00

Operating Without Liability Insurance In Effe< MISC 2/26/2016 None Dismissed by Court 012N001008

Issued: 1/2812016

Fines/Fees:

0.00 Paid:

0.00 Balance:

0 00

Revocation of Suspended or Deferred Senten

3/6/2017 None Guilty

Issued: 1/29/2017

Fines/Fees:

0.00 Paid

0.00 Balance:

0.00

Bench Warrant Issued 9/14/2016 2/2812017
Case: TK-115-2017-00447 Judge: Karl P Seel

Case Total:

285.00 Paid:

0.00 Balance: 285.00

Status

Status Date

Returned, No

912612016

Returned, Served 31612017

- - - ---·~------

Defendant

Disposed

Filing Date: 1/30/2017

Charge

Degree Disposed Plea

Finding

Citation

Habitual Offender Operating Motor Vehicle MIS! 6/12/2017 Not Guilty Guilty

012B000191

Issued: 1/29/2017

Fines/Fees:

835.00 Paid: 100.00 Balance:

735.00

Jail time Years:

Months 12 Days: 14

Driving a Motor Vehicle While Privilege To Do MISC 6/12/2017 Not Guilty Dismissed by Prose 012B000190

Issued: 1/29/2017

Fines/Fees:

0.00 Paid:

0.00 Balance:

0.00

Case: TK-115-2017-01890 Judge: Karl P Seel

Case Total:

835.00 Paid:

Defendant

Disposed

Filing Date: 5/1012017

100.00 Balance:

735.00

Charge

Degree Disposed Plea

Finding

Citation

Driving a Motor Vehicle While Privilege To Do MISC 5110/2017 Guilty Guilty

012G000991

Issued 5/912017

Fines/Fees·

535.00 Paid:

0.00 Balance: 535.00

Jail time Years:

Months 6 Days: 10

Habitual Offender Operating Motor Vehicle MIS! 5/1012017 Guilty Guilty

012G000992

Issued: 5/9/2017

Fines/Fees:

625.00 Paid:

0.00 Balance: 625.00

Jail time Years:

Months 12 Days: 14

Fail To Drive To Right Of Roadway Except Wh MISC 5/10/2017 Guilty Guilty

012G000993

Issued: 51912017

Fines/Fees:

125.00 Paid:

0.00 Balance: 125.00

Case Total: 1285.00

---

·-------·---

Paid: - -----

· -0-.0-0 -B-ala-n-ce:

-

-12-85.00

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 12 of 13
EXHIBIT 5: SUSPENSION NOTICE
2009

Case 2:17-cv-00066-SEH Document 1-2 Filed 08/31/17 Page 13 of 13

Motor Vehicle Division
Safety •Efficiency • Dependc:rb;fity January 14, 2009
MICHAEL DIFRANCESCO 315 S lSTH AVE NBR 2 BOZEMAN MT 59715

St('Y;.' BuHtH.:io;.
o\!tornr.}: {~~u1.·r~)f
11n.•ndn •'1Drdlt:u!l r\1: tiug Ad n;inistr:i :111
:1o:i N1~nh R1>h~'t't"> Sli\_', l
PO Bn.·;. 2Dl-~-..n Hdem1, tvJT 59620-1 :.!JO
Order Of suspension
LIC #: DOB: 12/08/1994 EFF DT:Ol/14/2009

Dear Mr. Difrancesco

You are notified that pursuant to MCA 61-5-214, your driver 1 s license and/or driving privilege is suspended indefinitely, effective on the date shown above. This suspension is based upon notification that you failed to app~ar or pay fines, cost, and/or restitution as required by law from a court in Bozeman.

If you wist1 to obtain further information regarding this
suspension or the requirements for restoration of your driver's license and/or driving privilege you must CONTACT THE COURT DIRECTLY at 615 South 16Th Ave Rm 123, Bozeman MT 59715 (406-582-2040).

You are not authorized to operate a motor vehicle while your license is suspended. All Montana driver licenses or permits in your possession must be immediately submitted to th~ department. Montana law does not allow the departme~t to issue any restricted or probationary license during this suspension (61-5-215 MCA).

In accordance with law, your d~iver 1 s license and/or driving privilege may be restored when the department is notified by the court that you have complied with requirements and your driving
record indicates you are otherwise qualified to be licensed.

once you have satisfi~d the requirements of the court, you

must pay a $100 non-refundable reinstatement fee directly to the

department as required by MCA 61-5-218(1). The $100 fee

should be paid by check or money order, made payable to the

11 Motor Vehicle Division", with your driver's license number

clearly included on the check or money order 1 and must be mailed to this addreaSi Motor Vehicle Division, PO Box 201430i

Helena MT 5~620-1430.

rHE UNDERSIGNED HEREBY TESTIFIES 'fHAT ON THl

By By

Authority of; Greg Noose, Records and
~·
Clerk: JL~~--

Chief Driver

Control

OATO SF.WW, Ht' OR SHE, AS AN OFFICoR OR
EMPLOYEE OF THE /,IOTOil Vi}l1CLE DIVISION, DEPOSITED
liN>l'lJ!''IH:JTrn ''· fAffC. ~::,11 .. AT ~ELrnA MONTANA, A COPY OF TiF: P;\?~.x n:1 \1/i·!!:~:;i THIS IS At:FIXED, IN AN
ENl/~LOPC: !;'i';·;H Tr·;;.; i~0:1TN.JI: ?REPAID, ADDRESSED

TO THE PEfiSON N.f.lldEO iN rHE PAPER AT HIS OR HER

lAST ADDRESS AS SHOWN BY THE RECORDS OF THIS

. '- ''·r OE AR.T
-

ENJ,
-'-~

_JId· i".l.,,.;.,.,..,..;,?,,,.,.,,f,'==~~=

-' i-

OFFlr:F,R E. PLOYl:E 0 OEPArtT ENT

TELEPllONE: (406) 444-3292 •FAX (406) 444-1631

 
 Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 1 of 38

Phil Telfeyan (pro hac vice) Rebecca Ramaswamy (pro hac vice) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 ptelfeyan@equaljusticeunderlaw.org rramaswamy@equaljusticeunderlaw.org

Robert Farris-Olsen (MT Bar No. 11937) Scott Peterson (MT Bar No. 11996) Attorneys, Morrison, Sherwood, Wilson & Deola, PLLP 401 N. Last Chance Gulch St. Helena, MT 59601 (406) 442-3261 rfolsen@mswdlaw.com speterson@mswdlaw.com

Attorneys for Plaintiffs

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

____________________________________

)

MICHAEL DiFRANCESCO and

)

ASHLEY DAVIS, on behalf of themselves )

and others similarly situated,

)

) Case No. CV-17-66-BU-SEH

Plaintiffs,

) CLASS ACTION

)

v.

)

) AMENDED COMPLAINT

TIM FOX, in his official capacity as

) JURY DEMANDED

Attorney General of Montana;

)

SARAH GARCIA, in her official capacity )

as Administrator of the Motor Vehicle

)

Division; and

)

MICHELE SNOWBERGER, in her

)

official capacity as Bureau Chief of the )

1

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 2 of 38

Driver Services Bureau,

)

)

Defendants.

)

____________________________________)

Introduction

1. This case is about the Motor Vehicle Division of the Montana

Department of Justice (“the MVD”) running a wealth-based driver’s license

suspension scheme that traps some of the state’s poorest residents in a cycle of

poverty. The MVD automatically and indefinitely suspends the driver’s licenses of

people who owe court-ordered fines, costs, and restitution even if they simply cannot

afford to pay. Without driver’s licenses, people already facing the harsh realities of

owing court debt while living in poverty face additional hurdles of being unable to

drive to and from work, get their children to daycare, keep medical appointments,

and care for their family members.

2. Although Montana’s automatic suspension of driver’s licenses is

designed to coerce payment, for people who are unable to pay, the state’s practice

will never accomplish its intended goal; no incentive or punishment will increase the

likelihood of a person paying a debt if he or she does not have the money. Penalizing

people for being unable to pay court debts violates the Equal Protection Clause of

the Fourteenth Amendment, the Due Process guarantee of fundamental fairness,

Plaintiffs’ right to travel, and longstanding Supreme Court precedent. Defendants

2

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 3 of 38
have trapped Plaintiffs Michael DiFrancesco and Ashley Davis in an inescapable cycle of poverty by suspending their licenses.
3. The MVD indefinitely suspends the driver’s licenses of people who fail to pay court-ordered fines, costs, and restitution, even where nonpayment is solely due to indigence and thus not willful. Mont. Code Ann. § 61-5-214(1)(b). A person whose license has been suspended for non-payment of fines or fees must pay $100 to the MVD before his or her license can be reinstated unless a court found the person indigent for the purposes of assigning a public defender. Mont. Code Ann. § 61-5218.
4. Anyone convicted of driving during a suspension period faces a jail sentence of up to six months or a fine of up to $500. Mont. Code Ann. § 61-5212(1)(b)(ii). A conviction also carries a mandatory one-year extension of the suspension. Mont. Code Ann. § 61-5-212(2)(a).
5. These suspensions deprive some of Montana’s poorest residents of their only reliable means of transportation to and from work, further diminishing their ability to meet their court-ordered financial obligations.
6. By and through their attorneys, on behalf of themselves and others similarly situated, Plaintiffs Michael DiFrancesco and Ashley Davis seek declaratory and injunctive relief against Defendants in their official capacities to end
3

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 4 of 38
this unconstitutional wealth-based suspension scheme because it violates the Due Process and Equal Protection Clauses of the United States Constitution.
Nature of the Action 7. The Montana MVD automatically suspends the driver’s licenses of people who fail to pay court-ordered fines, costs, and restitution, even if they are unable to pay the debts. Plaintiffs seek declaratory and injunctive relief prohibiting this wealth-based suspension scheme. 8. The MVD is violating Plaintiffs’ equal protection and substantive due process rights, and those of people similarly situated, because suspending people’s driver’s licenses solely because they are too poor to pay their court debts is wealth discrimination. 9. The MVD is violating Plaintiffs’ substantive due process rights, and those of people similarly situated, because Montana citizens, regardless of wealth, have a fundamental right to intrastate travel in addition to the constitutional guarantee of interstate travel. Because there is no meaningful alternative to driving in Montana, the lack of a valid license necessarily impedes those rights without being narrowly tailored to a compelling government interest. 10. The MVD is violating Plaintiffs’ equal protection rights, and those of people similarly situated, because the state’s suspension scheme lacks any rational basis. Suspending the driver’s licenses of people too poor to pay court debt inhibits
4

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 5 of 38
a person’s ability to pay court debts, thus directly undermining the supposed governmental interest in obtaining payment.
11. The MVD is violating Plaintiffs’ equal protection rights, and those of people similarly situated, because automatic driver’s license suspensions constitute an extraordinary collection effort.
12. The MVD is violating Plaintiffs’ procedural due process rights, and those of people similarly situated, because individuals have property interests in their driver’s licenses that cannot be denied without notice and a hearing.
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 Michael DiFrancesco is a 23-year-old resident of Bozeman, Montana, who has recently experienced homelessness. Ex. 1, DiFrancesco Decl. Mr. DiFrancesco’s troubles began when he was fined $185 for a civil infraction he committed when he was only 14 years old. Since then, his court debt has ballooned to nearly $4,000 due solely to his inability to drive legally. Mr. DiFrancesco cannot afford to pay this debt. Id.
5

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 6 of 38
16. Plaintiff Ashley Davis is a 31-year-old single mother who lives in Missoula. Although she managed to pay off earlier debt and obtain a license in December of 2016, her license was suspended again in 2017 when she was unable to pay fines for insurance infractions. Ex. 2, Davis Decl. Ms. Davis currently is scraping by supporting her son and unable to pay all her bills, let alone her court debt. Id.
17. Defendant Tim Fox is the Attorney General of Montana. As Attorney General, Mr. Fox is the head of the Montana Department of Justice, the state’s top law enforcement and legal agency. Additionally, because the Montana MVD is a division of the Department of Justice, Mr. Fox oversees and is ultimately responsible for all actions of the MVD. Mr. Fox is sued in his official capacity as Attorney General.
18. Defendant Sarah Garcia is the Administrator of the Motor Vehicle Division of Montana. The MVD is a division of the Department of Justice and is responsible for “licensing, registering, and regulating the motoring activities of the public.” Ex. 3, DOJMT.gov – Motor Vehicle Division. Ms. Garcia is sued in her official capacity as MVD Administrator.
19. Defendant Michele Snowberger is the Bureau Chief of the Driver Services Bureau of the Motor Vehicle Division. The Driver Services Bureau
6

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 7 of 38
administers all driver license records and actions, including suspensions. Ms. Snowberger is sued in her official capacity as Bureau Chief.
20. 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 Montana.
Factual Allegations I. Introduction
21. The MVD suspends the driver’s licenses of people who fail to comply with a sentence — including payment of court-ordered fines, fees, and restitution — upon receipt of a report from a court. Mont. Code Ann. § 61-5-214(1)(b).
22. The MVD imposes suspensions under MCA 61-5-214(1)(b) for failure to pay regardless of the reason for nonpayment and without consideration of whether the person has the financial means to pay. Id.; see also Ex. 4, Rutzke Aff.
23. Suspensions for failure to pay fines are indefinite and continue until the court notifies the Department that the person has complied with the sentence, “including payment of any assessed fines, costs, or restitution.” Mont. Code Ann. § 61-5-214(2)(a); see also Ex. 5, DOJMT.gov – Driver License Sanctions.
24. A valid driver’s license is essential for people to secure and maintain employment, and the loss of a license often results in further financial hardship for individuals and their families. See Ex. 4, Rutzke Aff.
7

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 8 of 38
25. An estimated 19,667 Montana drivers currently have license suspensions because of failure to pay court debts. Pl.’s Resp. Supp. Class Cert. Brief, ECF No. 30 at 6.
26. Suspended licenses can trap people who are poor in an impossible situation: they cannot afford to reinstate their licenses without steady employment, but they are unable to work without licenses. See Ex. 4, Rutzke Aff.
27. Paying off court debt is particularly difficult for the 14 percent of Montana residents who live below the federal poverty line. Ex. 6, Talk Poverty – Mont. 2016.
28. Suspending licenses as a means of debt collection also draws resources away from public safety, because law enforcement officers must devote resources to stopping and investigating suspended drivers who do not present a danger behind the wheel instead of pursuing individuals who do. II. Plaintiffs’ Debts
A. Michael DiFrancesco 29. Named Plaintiff Michael DiFrancesco is a resident of Bozeman, Montana. Ex. 1, DiFrancesco Decl. 30. In 2008, when Mr. DiFrancesco was 14 years old, he was convicted of violating Montana’s “minor in possession” (MIP) law, a civil infraction. Id.; see
8

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 9 of 38
also Ex. 7, DiFrancesco Bozeman Mun. Ct. Summary; Mont. Code Ann. § 45-5624.
31. As penalty for his civil infraction, he was fined $185 and ordered to pay for and complete a community-based substance abuse information course. Ex. 7, DiFrancesco Bozeman Mun. Ct. Summary; see also Ex. 1, DiFrancesco Decl.
32. At the time, Mr. DiFrancesco could not afford to pay the fine or the fee for the course. Id.
33. Because he could not afford to comply with the sanction, Mr. DiFrancesco received a notice from the MVD on January 14, 2009 “that pursuant to MCA 61-5-214, [his] driver’s license and/or driving privilege [was] suspended indefinitely . . . based upon notification that [he] failed to appear or pay fines, cost, and/or restitution as required by law from a court in Bozeman.” Ex. 8, DiFrancesco Suspension Notice 2009.
34. The MVD further informed Mr. DiFrancesco that he would need to satisfy all his court debts and “pay a $100 non-refundable reinstatement fee directly to the department as required by MCA 61-5-218(1)” before his license could be reinstated. Id.
35. Thus, Mr. DiFrancesco was not able to obtain a learner’s permit or provisional driver’s license while he was under the age of 18, nor was he able to take
9

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 10 of 38
a driving test and obtain a full Montana driver’s license once he turned 18, as he still had outstanding court debt from his MIP. Ex. 1, DiFrancesco Decl.
36. Mr. DiFrancesco has since paid the fine and completed the community service for his MIP. Ex. 1, DiFrancesco Decl.; see also Ex. 7, DiFrancesco Bozeman Mun. Ct. Summary. But he has not been able to pay off the many large fines he has been ordered to pay for driving without a valid license. Ex. 1, DiFrancesco Decl.; see also Ex. 7, DiFrancesco Bozeman Mun. Ct. Summary; Ex. 9, DiFrancesco Driver Record.
37. Mr. DiFrancesco is a construction worker and is unable to work consistently without being able to drive. Ex. 1, DiFrancesco Decl.
38. Lacking a valid license has caused Mr. DiFrancesco to become unemployed.
39. Lacking a valid license has caused Mr. DiFrancesco to become homeless.
40. Because he must work to earn money, he has been convicted of driving without a license five times in the past three years. Id.; see also Ex. 9, DiFrancesco Driver Record.
41. Each conviction of driving without a valid license resulted in six points being added to Mr. DiFrancesco’s driving record, and he thus accrued 30 points within a three-year period. Ex. 10, DiFrancesco Habitual Traffic Offender Decl.
10

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 11 of 38
42. On October 5, 2016, the MVD declared Mr. DiFrancesco a “Habitual Traffic Offender” due to the 30 points he had accrued for his many convictions for driving without a license and imposed a revocation of his driver’s license for a period of three years, effective from the date of the letter. Id.; see also Mont. Code Ann. § 61-11-203(1)(b).
43. Mr. DiFrancesco has never been charged with a moving traffic violation or any violation related to road safety. Ex. 1, DiFrancesco Decl.; see also Ex. 9, DiFrancesco Driver Record.
44. Mr. DiFrancesco’s inability to drive legally stems solely from his poverty; if he had had the money to pay his court-ordered debt in 2008 — or at any point thereafter until January of 2016 — he would have been able to restore his driving rights, and he would have avoided the convictions that led to the MVD declaring him a “habitual traffic offender.” Ex. 1, DiFrancesco Decl.; see also Ex. 9, DiFrancesco Driver Record.
45. Mr. DiFrancesco still owes nearly $4,000 in unpaid fines for his “driving without a license” convictions. Ex. 1, DiFrancesco Decl.
46. Mr. DiFrancesco has also spent a total of about five months in jail for driving without a license. Id.
47. Because he has no driver’s license, he has not had a job in about a year. Id.
11

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 12 of 38
48. As of this filing, he is not working and has no regular income. Id. 49. Because he is unable to work and has no regular income, Mr. DiFrancesco does not have stable housing. Id. B. Ashley Davis 50. Named Plaintiff Ashley Davis is a resident of Missoula, Montana. Ex. 2, Davis Decl. She is a 31-year-old single mother and the sole supporter of her 12year-old son. Id. 51. Ms. Davis has two active suspensions on her license, both for failure to pay fines for insurance violations she received in 2016. Id.; see also Ex. 11, Davis Driver Record.1 52. Ms. Davis was and is unable to pay the two fines. Ex. 2, Davis Decl. 53. As of this filing, Ms. Davis owes $466.46 in court debt, which she must pay before the MVD will reinstate her license. Ex. 2, Davis Decl.; see also Ex. 12, Davis Missoula Mun. Ct. History; Ex. 13, Davis Missoula Co. Justice History. 54. Ms. Davis earns $14.00 per hour working at BretzRV & Marine in Missoula. Ex. 2, Davis Decl.
1 Ms. Davis’s Declaration (Ex. 2) and Driver Record (Ex. 11) provide details on a number of past suspensions that are no longer active. Ms. Davis’s license was fully restored on December 23, 2016. This Complaint includes only those suspensions which form the basis of her claims: the two active 2017 failure-to-pay suspensions.
12

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 13 of 38
55. Ms. Davis loses about 25% of her limited income to wage garnishment, mainly for an emergency surgery she had to have in 2016. Id.
56. Ms. Davis works through her lunch break and takes as much overtime as she can, but after garnishment, her monthly income is only XXX. Id.
57. Even before garnishment, Ms. Davis’s monthly expenses exceed her income. Id. She pays $630 per month in rent for a low-income apartment, the lowest rent she has been able to find in Missoula. Id. She also must pay for all the utilities for the apartment, food for herself and her son, and she must continue to make payments on her car even though she cannot drive it. Id.
58. Ms. Davis’s gross income is not quite low enough to qualify her for public assistance — her wage garnishment is not accounted for in her eligibility calculation. Id. She does not receive food stamps or even free school lunch for her son.
59. She has to pick and choose which bills to pay each month. She is barely scraping by, and her refrigerator is often empty. Id.
60. On top of her financial burdens, Ms. Davis is unable to drive. She must rely on friends to drive her to work. Id.
61. Ms. Davis needs her driver’s license to care for her young son. He has health conditions that require regular appointments across town from where they
13

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 14 of 38
live, and he often needs to be picked up from after-school activities in the evening when the school bus is not an option. Id. III. Montana’s Wealth-Based Driver’s License Suspension Scheme Traps
Poor Residents in a Cycle of Poverty A. Defendants Suspend the Licenses of All People Who Fail to Pay
Their Court Debts, Even Those Who Are Too Poor to Pay 62. When a person does not pay a fine, court cost, or restitution, the MVD imposes a mandatory, indefinite suspension on the person’s license. Mont. Code Ann. § 61-5-214(1)(b). 63. Although a “person must be given written notice that the failure to appear on a criminal charge or comply with a criminal sentence may result in the suspension of the person’s driver’s license or driving privilege . . . followed by a written warning from the court . . . advising the person that a license suspension is imminent,” Mont. Code Ann. § 61-5-214(3), there is no mention of any exception for those who can demonstrate that they are too poor to pay. 64. The court is not statutorily required to make any inquiry into the reason for nonpayment or a person’s financial status before informing the MVD that the person has failed to pay court debts. In fact, courts do not make any such inquiry. 65. The MVD does not make any inquiry into the reason for nonpayment or a person’s financial status before immediately suspending the license of the person.
14

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 15 of 38
66. No MVD official ascertains the reason for nonpayment or a person’s financial status after suspending the license of the person.
67. A person may file a petition within 30 days after suspension for a hearing in the district court in the county where the person resides. Mont. Code Ann. § 61-5-211. But the suspension notice contains no mention of this right to a hearing, see Ex. 8, DiFrancesco Suspension Notice 2009, so there is no guarantee that an individual whose license has been suspended will even be aware of this right. Moreover, the court in such a hearing is tasked with “tak[ing] testimony and examin[ing] the facts of the case and determin[ing] whether the petitioner is entitled to a driver’s license,” with no mention of hearing evidence on ability to pay or making a determination of indigence. Mont. Code Ann. § 61-5-211.
68. People whose licenses are suspended because of failure to comply with a sentence, including payment of fines, costs, or restitution, are not eligible to receive provisional, restricted, or probationary licenses. Mont. Code Ann. § 61-5-215.
B. Defendants Will Not Reinstate a License Suspended for Nonpayment of Court Debts Until the Person Has Paid a $100 Fee in Addition to All Court Debts Owed
69. Suspensions for failure to pay court debts are indefinite; they continue until the court notifies the MVD that the person has complied with the sentence, “including payment of any assessed fines, costs, or restitution.” Mont. Code Ann. §§ 61-5-214(2)(a) and 61-5-216.
15

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 16 of 38
70. A driver whose license has been suspended must pay a reinstatement fee of $100 to the MVD before it can be restored. Mont. Code Ann. § 61-5-218(1).
71. The MVD waives the reinstatement fee if a court has determined the person qualifies for a public defender. Mont. Code Ann. §§ 47-1-111; 61-5218(2)(c). But most fines are imposed for civil infractions, such as traffic tickets, which do not trigger appointment of counsel.
C. A Person Who Drives While His or Her License Is Suspended Faces Imprisonment, Fines, and an Additional Period of Suspension
72. A person convicted of driving without a valid license faces imprisonment for up to six months or a fine of up to $500. Mont. Code Ann. § 615-212(1)(b)(ii).
73. A conviction of driving while one’s license is suspended also carries a mandatory one-year extension of the period of suspension. Mont. Code Ann. § 615-212(2)(a).
74. Driving while one’s license is suspended is an absolute liability offense in Montana, and people are frequently convicted of the offense even when they never received notification that their license had been suspended. Ex. 4, Rutzke Aff.
75. A conviction for driving while one’s license is suspended results in six points being added to one’s driving record. Mont. Code Ann. § 61-11-203(2)(e).
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Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 17 of 38
76. A person who accumulates 30 points on his or her driving record within a three-year period is declared a “Habitual Traffic Offender” and faces a mandatory three-year license revocation. Mont. Code Ann. §§ 61-11-203(1)(b) and 61-11-211.
D. License Suspensions Drive People Further into Poverty and Invite Further Infractions
77. Montana’s wealth-based suspension scheme imposes significant hardship on debtors and their families, often forcing them to choose between paying for food, shelter, health care, and clothing, or paying their court costs and fines.
78. Because they cannot pay fines, poor drivers are over-represented in the pool of suspended drivers when compared to the general population of licensed drivers.
79. People whose licenses are suspended because of failure to comply with a sentence, including payment of fines, costs, or restitution, are not eligible to receive provisional, restricted, or probationary licenses. Mont. Code Ann. § 61-5-215.
80. 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.” Ex. 14, Alana Semuels, No Driver’s License, No Job, The Atlantic (June 15, 2016).
17

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 18 of 38
81. Indeed, a rigorous study of New Jersey drivers found that 42% of drivers lost their jobs after their driver’s licenses were suspended. Ex. 15, Driver’s License Suspensions, Impacts and Fairness Study, at 56.
82. Of those drivers, 45% were unable to find new employment. Id. 83. Of those that were able to find another job, 88% reported a decrease in income. Id. 84. In many cases, Montana’s wealth-based suspension scheme forces suspended drivers to choose between driving illegally and losing their jobs. See Ex. 4, Rutzke Aff. 85. In Montana, driving on a suspended license is a criminal offense, with a violation resulting in a prison sentence of up to six months or a fine of up to $500. Mont. Code. Ann. § 61-5-212(1)(b)(ii). 86. Thus, Montana’s wealth-based suspension scheme creates a downward spiral from poverty to criminal culpability: an unpaid civil infraction ticket triggers automatic suspension, which often leads to the offense of driving without a valid license. 87. The high cost of losing a driver’s license inevitably results in an impossible choice: drive — and risk being charged with driving while suspended, which itself can lead to additional costs, fines, and periods of incarceration — or refrain from driving and lose access to gainful employment and medical care.
18

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 19 of 38
E. Montana’s Vast Rural Landscape Exacerbates the Hardships of Living Without a License
88. At 145,545 square miles, Montana is the fourth-largest state in the United States. Ex. 16, U.S. Census Bureau QuickFacts – Montana at 2. With only 6.8 people per square mile, it is one of the most sparsely-populated states — ranking 48th in population density. Id.
89. Without the ability to drive, most jobs are inaccessible to people living in Montana. Even in cities where some public transportation options are available, getting to and from work without the ability to drive is extremely challenging and time-consuming, if it is possible at all. See Ex. 4, Rutzke Aff.
90. In fact, the Census Bureau estimates that three-quarters of Montana commuters drive themselves to work, while only 5.7 percent walk, and a scant 0.7 percent use public transit. Ex. 17, Mont. Commuter Transportation. IV. Montana’s Wealth-Based Suspension Scheme Violates Plaintiffs’ Equal
Protection and Due Process Rights 91. Defendants’ indefinite suspension of Plaintiffs’ driver’s licenses because of their inability to pay court debts violates their constitutional rights under the Equal Protection and Due Process Clauses. A. Defendants’ Suspension Scheme Violates Equal Protection and
Due Process Because It Constitutes Wealth Discrimination 92. Suspending Plaintiffs’ licenses for failing to pay court debts that they cannot afford is wealth discrimination. See, e.g., Bearden v. Georgia, 461 U.S. 660,
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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).
93. Montana suspends driver’s licenses without first determining whether the nonpayment was willful or whether the person was simply too poor to pay.
94. The MVD enforces Montana’s wealth-based suspension scheme without considering the debtor’s ability to pay or offering any alternatives.
95. Thus, Montana’s wealth-based suspension scheme inevitably results in individuals being punished for their inability to pay.
96. By converting a relatively modest penalty (e.g., a $185 civil infraction fine) into a serious deprivation (an indefinitely suspended driver’s license), Montana unfairly penalizes people who are poor simply for being poor.
97. Punishing a person solely for his or her inability to pay constitutes wealth discrimination in violation of equal protection and due process.
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B. Defendants’ Wealth-Based Suspension Scheme Violates Due Process Because It Infringes on Plaintiffs’ Fundamental Right to Travel
98. Plaintiffs have a fundamental due process right to intrastate travel. See, e.g., Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002); see also In re Marriage of Guffin, 209 P.3d 225, 228 (Mont. 2009) (holding “that the right to travel guaranteed by the United States Constitution includes the right to travel within Montana”).
99. Plaintiffs live in a large, sparsely-populated, rural state where public transportation is extremely limited.
100. Plaintiffs cannot afford to pay for taxis or other car services for daily commuting and living.
101. Due to Montana’s weather conditions, non-motorized modes of transport, such as walking or biking, are not feasible alternatives during the winter.
102. Thus, Plaintiffs’ only reliable form of transportation is to drive their personal vehicles.
103. Defendants have suspended Plaintiffs’ licenses simply because they are unable to pay their debts and therefore have impeded their fundamental right to intrastate travel.
104. Because it implicates a fundamental liberty interest, Defendants’ suspension scheme must be narrowly tailored to achieve compelling state objectives.
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105. 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.
106. While the collection of court-ordered debt is a significant state interest, suspending the driver’s licenses of those 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.
107. Accordingly, Defendants’ wealth-based suspension scheme violates the Due Process Clause.
C. Defendants’ Wealth-Based Suspension Scheme Violates Equal Protection Because It Discriminates Against Poor People Without a Rational Connection to a Legitimate State Purpose
108. Montana’s wealth-based suspension scheme is not rationally related to any legitimate government objective because suspending driver’s licenses impedes lower-income workers from obtaining or maintaining employment in order to meet their financial obligations to the court.
109. Driver’s licenses are often essential in the pursuit of a livelihood, and their suspension threatens important interests of the people who hold them.
110. The purpose of licensing drivers is to promote safety by keeping dangerous drivers off Montana’s roads.
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111. License suspension as a debt-collection method is unrelated to public safety and is counterproductive to Montana’s interests in collecting debt from indigent residents because it prevents such residents from working.
112. For poor debtors, avoiding driver’s license suspension does not operate as an incentive to pay when they must choose between paying the court and paying rent, buying medication, feeding their families, and other necessary expenses.
113. Indeed, for people who cannot pay court debt, 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 court debt.
114. The loss of a license often means the loss of reliable transportation to and from work, which makes debtors less able to meet their financial obligations to the court.
115. Suspending driver’s licenses — especially for people who are poor — causes unemployment and homelessness and thus exacerbates a cycle of poverty.
116. By increasing unemployment, homelessness, and the cycle of poverty, Montana’s scheme is directly contrary to its own interest because it undermines people’s ability to repay court debt. By decreasing the state’s chances of recouping court debt, Montana’s scheme is counterproductive and therefore irrational.
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117. Montana’s wealth-based suspension scheme violates equal protection because it causes substantial hardship to poor drivers and bears no rational relationship to any legitimate government objective.
D. Defendants’ Wealth-Based Suspension Scheme Violates Equal Protection Because It Constitutes Extraordinary Collection
118. When governments seek to recoup the costs of prosecution from indigent defendants, they may not use unduly harsh methods of debt collection solely because the debt is owed to the government and not to a private creditor. See James v. Strange, 407 U.S. 128 (1972); see also State v. Ellis, 167 P.3d 896, 899–900 (Mont. 2007) (suggesting that a recoupment scheme may implicate equal protection if there is no consideration of whether the debtor is able to pay and if the debtor has no opportunity to petition the court for remission of payment of debts “on grounds that it will impose manifest hardship”).
119. Fines penalize unlawful behavior; similarly, restitution compensates a victim. By contrast, court costs subsidize court operations and thus are ordinary private consumer debts incurred for services rendered.
120. When a private creditor seeks to enforce a judgment against a debtor via garnishment or lien, the law provides procedural and substantive protections for poor debtors against deprivation of certain basic necessities and the ability to maintain a livelihood.
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121. The private creditor may coerce payment only to the extent permitted by those protections.
122. Montana’s wealth-based suspension scheme does not treat indigent defendants, to the extent that they owe court costs, like other judgment debtors.
123. Montana’s wealth-based suspension scheme provides for suspension of the debtor’s driver’s license and the possibility of imprisonment.
124. When the State of Montana, through Defendants’ actions, takes advantage of the machinery of government to strip debtors of their driver’s licenses, it coerces payment in a way that is unavailable to private creditors for debts unrelated to driving. Thus, it denies debtors who owe court costs the procedural and substantive statutory protections that other Montana debtors may invoke against a private creditor in ordinary debt collection proceedings.
125. Montana’s wealth-based suspension scheme fails to offer poor debtors the substantive and procedural protections that prevent private creditors from denying debtors the ability to maintain their livelihoods and meet their basic needs.
126. The State of Montana’s severe and coercive collection policies and practices discriminate against poor debtors and violate the fundamental principle of equal protection of the laws embedded in the United States Constitution.
E. Defendants’ Wealth-Based Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Abilityto-Pay Hearing or Provide Notice of Such a Hearing
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127. 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); see also Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 986 (9th Cir. 1991); State ex rel. Majerus v. Carter, 693 P.2d 501, 503–504 (Mont. 1984).
128. Due process requires the State of Montana to conduct ability-to-pay inquiries at each stage in a case, including the point at which it proposes to take coercive action to punish nonpayment.
129. The state’s wealth-based suspension scheme imposes mandatory costs without consideration of ability to pay. Instead, Defendants suspend a person’s driver’s license upon receiving a notice a court that that person has failed to pay court debts. Mont. Code Ann. § 61-5-214(1)(b).
130. Prior to suspending a debtor’s driver’s license, the MVD does not inform the debtor of any right to an ability-to-pay hearing.
131. Moreover, Defendants do not independently review the debtor’s ability to pay before or after enforcing the harsh punishment of suspension.
132. The purpose of the state’s wealth-based suspension scheme is to coerce payment, not to protect public safety on the roads. Therefore, Plaintiffs and others similarly situated are entitled to an ability-to-pay hearing prior to license suspension and proper notice of such a hearing.
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133. There is currently no hearing required under Montana law for those facing driver’s license suspension for unpaid court debt, creating a high risk that indigent debtors will be deprived of their driver’s licenses for reasons directly attributable to their poverty.
134. The high risk of deprivation created by Defendants’ automatic, onesize-fits-all driver’s license suspension system violates due process.
Class Action Allegations 135. The named Plaintiffs 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. 136. A class action is a superior means, and the only practicable means, by which named Plaintiffs and unknown Class Members can challenge Defendants’ unlawful wealth-based suspension scheme. 137. 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. 138. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 139. Plaintiffs propose a declaratory and injunctive class defined as: All individuals whose Montana driver’s licenses are, or will be, suspended for
27

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nonpayment of a fine, cost, or restitution under Mont. Code Ann. § 61-5-214(1)(b) and who were, or will be, unable to afford to pay the fine, cost, or restitution at the time of suspension.
140. In the alternative, Plaintiffs propose two declaratory and injunctive subclasses defined as:
(1) Current Class Members, who will be members of the class as of the date of certification: All individuals whose Montana driver’s licenses are currently suspended for nonpayment of a fine, cost, or restitution under Mont. Code Ann. § 61-5-214(1)(b) and who were unable to afford to pay the fine, cost, or restitution at the time of suspension; and
(2) Future Class Members, who will be added to the class when their claims become ripe: All individuals whose Montana driver’s licenses will be suspended for nonpayment of a fine, cost, or restitution under Mont. Code Ann. § 61-5-214(1)(b) and who are unable to afford to pay the fine, cost, or restitution at the time of suspension.
I. Numerosity — Fed. R. Civ. P. 23(a)(1) 141. Plaintiffs estimate that the MVD issues an average of 7,500 suspensions
for failure to pay each year, based on the average number of failure-to-comply suspensions issued each year from 2014 to 2017 multiplied by the percentage (75
28

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percent) of failure-to-comply suspensions Plaintiffs estimate to be failures to pay. Pl.’s Supp. Class Cert. Brief, ECF No. 28 at 5.
142. While many of the Montana licenses suspended for failure to comply (including failure to pay) are eventually restored, a significant percentage remain suspended for years.
143. Of the 29,714 DI Code 601 nonpayment suspensions issued between 1987 and 2009, a total of 2,513 remain active in 2018. Pl.’s Supp. Class Cert. Brief, ECF No. 28 at 7. That is, over 2,500 DI Code 601 suspensions remain active even nine years after the MVD discontinued its use of that code, making each of those 2,513 nonpayment suspensions at least nine years old.
144. And of the 40,050 DI Code 605 failure-to-pay suspensions issued between 1997 and 2013, a total of 8,990 remain active in 2018. Id. That is, nearly 9,000 DI Code 605 suspensions remain active five years after the MVD discontinued its use of that code, meaning each of those 8,990 failure-to-pay suspensions is at least five years old.
145. Between January 1, 2014, and January 19, 2018, the MVD issued 40,581 failure-to-comply suspensions to 20,710 individuals (many people have multiple suspensions). Id. at 7–8. Of those 20,710 individuals, 11,013 still do not have their licenses restored (22,033 suspensions remain active). Id. at 8. That means
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that over half of the people who received failure-to-comply suspensions in the last four years have not yet gotten their licenses restored.
146. Plaintiffs estimate that 19,667 Montana drivers currently have active license suspensions because of failure to pay court debts. Pl.’s Resp. Supp. Class Cert. Brief, ECF No. 30 at 6.
147. The estimate of 19,667 people who currently have suspensions for failure to pay excludes individuals who have had their licenses restored, so it is likely that a large percentage — perhaps even a majority — of the 19,667 are people who cannot afford to pay.
148. The number of people who have received suspensions for failure to pay is considerably higher than 19,667; Plaintiffs estimate that approximately 80,483 individuals have received failure-to-pay suspensions since 1987. Id. at 6–7. II. Commonality — Fed. R. Civ. P. 23(a)(2)
149. 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 the automatic suspension scheme violates the rights of the Class Members and relief mandating that Defendants end the scheme so that the constitutional rights of the Class Members will be protected in the future.
150. These common legal and factual questions arise from one scheme: Defendants’ automatic suspensions based on inability to pay court debts. The
30

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material requirements of the suspension 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.
151. Among the most important, but not the only, common questions of fact
are:
 Whether Montana has a policy and practice of using license suspension to punish poor people more harshly than wealthy people simply because poor people cannot afford to pay court-ordered finest, costs, and restitution;
 Whether Montana, acting by and through Defendants, 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;
 Whether Montana drivers receive adequate notice of their opportunity to assert their inability to pay in order to avoid suspension; and
 Whether Montana, acting by and through Defendants, exploits its governmental status to avail itself of forms of enforcement in the collection of court debts not available to most private civil creditors.
152. Among the most important, but not the only, common questions of law
are:
 Whether suspending a person’s driver’s license solely because she or he cannot afford to pay court costs and fines previously imposed is lawful;
 Whether a person is entitled to a meaningful inquiry into his or her present ability to pay court costs and fines before Defendants suspend his or her license for nonpayment;
 Whether license suspension in the state of Montana implicates a person’s constitutional right to travel; and
 Whether depriving persons encumbered with court debt of the protections afforded other Montana debtors when taking the harsh action of suspending their driver’s licenses for nonpayment violates the Equal Protection Clause. 31

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III. Typicality — Fed. R. Civ. P. 23(a)(3) 153. 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 court debts. The answer to whether Defendants’ wealth-based suspension scheme is unconstitutional will determine the claims of Named Plaintiffs and every other Class Member.
154. If Named Plaintiffs succeed in the claim that the MVD’s policies and practices concerning wealth-based suspension violate their constitutional rights, that ruling will likewise benefit every other Class Member. IV. Adequacy — Fed. R. Civ. P. 23(a)(4)
155. 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.
156. 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’ wealth-based suspension scheme.
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157. Plaintiffs are represented by attorneys from Equal Justice Under Law and Morrison, Sherwood, Wilson & Deola, PLLP, 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.
158. The combined efforts of Class counsel have so far included extensive investigation into Defendants’ suspension scheme, including conducting discovery into the suspension data maintained by the MVD, 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.
159. Class counsel have a detailed understanding of local law and practices as they relate to federal constitutional requirements.
160. 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)
161. 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 wealth-based suspension scheme: wealthy Montana residents
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who are ordered to pay costs, fees, fines, and restitution by the courts are able to retain their driver’s licenses, while the poorest residents are further forced into a cycle of poverty.
162. The Class therefore seeks declaratory and injunctive relief to enjoin Defendants from enforcing the automatic suspensions and reinstatement fees. 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.
163. 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 suspend driver’s licenses as a punishment for being poor 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: Defendants’ Suspension Scheme Violates Equal Protection and Due Process Because It Discriminates on the Basis of Wealth
164. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
165. The Fourteenth Amendment’s Due Process Clause requires that Montana maintain a standard of fundamental fairness in its justice system.
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Defendants’ automatic suspensions for failure to pay court debts punishes people 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. Count Two: Defendants’ Wealth-Based Suspension Scheme Violates Due Process Because It Infringes on Plaintiffs’ Fundamental Right to Intrastate Travel
166. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
167. Plaintiffs and others similarly situated have a fundamental right to travel. Because they 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 debt collection. Count Three: Defendants’ Wealth-Based Suspension Scheme Violates Equal Protection Because It Discriminates Against Poor People Without a Rational Connection to a Legitimate State Purpose
168. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
169. Defendants’ counterproductive collection method of suspending people’s licenses when they are unable to pay court debts is not rationally related to a legitimate state interest and is therefore unconstitutional. Count Four: Defendants’ Wealth-Based Suspension Scheme Violates Equal Protection Because It Constitutes Extraordinary Collection
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170. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
171. Plaintiffs’ equal protection rights are implicated when the State of Montana uses its unique position as a government to use debt collection methods that are not available to private creditors. By irrationally 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. Count Five: Defendants’ Wealth-Based Suspension Scheme Violates Procedural Due Process Because It Does Not Guarantee an Ability-to-Pay Hearing
172. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
173. Plaintiffs and others similarly situated have protected property and liberty interests in their driver’s licenses and their ability to drive legally. Defendants violate procedural due process rights under the United States Constitution and the Montana Constitution by suspending licenses without providing an opportunity to assert inability to pay and without providing adequate notice of such opportunity.
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 36

Case 2:17-cv-00066-SEH Document 42 Filed 11/02/18 Page 37 of 38
Plaintiffs’ and Class Members’ rights under the Constitution and laws of the United States; 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 court debt against Plaintiffs and Class Members until such time as the State of Montana 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 court debt and/or on driving on licenses suspended due to unpaid court debt) and enjoining Defendants from requiring Plaintiffs and Class Members to pay the reinstatement fees as a condition of such reinstatement; 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/ Phil Telfeyan Phil Telfeyan (pro hac vice) Rebecca Ramaswamy (pro hac vice) Attorneys, Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 ptelfeyan@equaljusticeunderlaw.org rramaswamy@equaljusticeunderlaw.org
/s/ Robert Farris-Olsen Robert Farris-Olsen (MT Bar No. 11937) Scott Peterson (MT Bar No. 11996) Attorneys, Morrison, Sherwood, Wilson & Deola, PLLP 401 N. Last Chance Gulch St. Helena, MT 59601 (406) 442-3261 rfolsen@mswdlaw.com
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speterson@mswdlaw.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on November 2, 2018, 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
38

 
 Case 2:17-cv-00066-SEH Document 57 Filed 01/09/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

1/9/2019

MICHAEL DiFRANCESCO and ASHLEY DAVIS, on behalf of himself and others similarly situated,
Plaintiff,
vs.
TIM FOX, in his official capacity as Attorney General of Montana; SARAH GARCIA, in her official capacity as Administrator of the Motor Vehicle Division; and MICHELE SNOWBERGER, in her official capacity as Bureau Chief of the Driver Services Bureau,
Defendants.

No. CV 17-66-BU-SEH
MEMORANDUM AND ORDER

A status conference and hearing on Plaintiffs Motion to Certify Class was held on October 16, 2018 .1 The Court determined at the hearing to defer address of

'Doc.18.
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the class certification pending supplementation of the record. An Amended Complaint2 and an Amended Motion to Certify Class were filed. 3 An additional hearing was held on January 8, 2019. The issue is ripe for resolution.
Background Plaintiffs claim that the Montana Motor Vehicle Division ("MVD") is "running a wealth-based driver's license suspension scheme that traps some of the state's poorest residents in a cycle ofpoverty."4 The Complaint asserts, inter alia, that: (1) the MVD automatically and unlawfully suspends the driver's license of people who owe court-ordered fines, costs, and restitution even if they simply cannot afford to pay; (2) the suspensions remain imposed until the fine is paid or waived; and (3) payment ofa $100.00 reinstatement fee before the license can be reinstated is required unless the fee is waived.5 The Amended Complaint pleads, under 42 U.S.C. § 1983, that the Montana statutory framework violates: (1) Plaintiffs' right of Equal Protection and Due Process by discriminating based on wealth; (2) Due Process by infringing on
2 Doc. 42. 3 Doc. 43. 4 Doc. 42 at 2. 5 See Doc. 42 at 7. See also MONT. CODE ANN.§§ 61-5-214(1) and 61-5-218 (2018).
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Plaintiffs' right to intrastate travel; (3) Equal Protection by discriminating based on wealth without a legitimate state purpose; (4) Equal Protection by employing "extraordinary collection" practices; and (5) procedural Due Process by not providing an ability-to-pay hearing prior to suspending driver's licenses.6
Plaintiffs seek: (1) a declaratory judgment that the state's practice of suspending licenses in accordance with Montana law is illegal and unconstitutional; (2) a preliminary and permanent injunction against Defendants' continued enforcement of the challenged statutes; (3) an injunction reinstating Plaintiffs' drivers licenses; and (4) attorneys' fees and costs.7
Discussion Plaintiffs have moved for certification of the following class:
All individuals whose Montana driver's licenses are, or will be, suspended for nonpayment of a fine, cost, or restitution under Mont. Code Ann.§ 61-5-214(1)(b) and who were, or will be, unable to afford to pay the fine, cost, or restitution at the time of suspension.8 In the alternative, Plaintiffs seek certification of two subclasses, defined as:
6 See Doc. 42 at 34-36. 7 See Doc. 42 at 37. 8 Doc. 43 at 2.
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(1) Current Class Members, who will be members of the class as of the date of certification: All individuals whose Montana driver's licenses are currently suspended for nonpayment of a fine, cost, or restitution under Mont. Code Ann. § 61-5-214(l)(b) and who were unable to afford to pay the fine, cost, or restitution at the time of suspension; and
(2) Future Class Members, who will be added to the class when their claims become ripe: All individuals whose Montana driver's licenses will be suspended for nonpayment of a fine, cost, or restitution under Mont. Code Ann.§ 61-5-214(l)(b) and who are unable to afford to pay the fine, cost, or restitution at the time of suspension. 9
Class action certification is governed by Fed. R. Civ. P. 23, under which
courts are vested with broad discretion in determining whether to certify a
proposed class. 10 The inquiry must be performed "rigorous[ly]" to enable the Court
to be fully satisfied the case meets all of the certification prerequisites 11 and to
facilitate the principal purpose of allowing a class action to be maintained to
"advance 'the efficiency and economy oflitigation."' 12
Rule 23(a) first requires the plaintiff show that "(l) the class is so numerous
9 Doc. 43 at 2. 10 See Barber v. Hawai'i, 42 F.3d I 185, 1197 (9th Cir. 1994). 11 Gen. Tel. Co. o_{Southwest v. Falcon, 457 U.S. 147, 161 (1982). 12 Falcon, 457 U.S. at 148 (quoting Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974)).
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that joinder of [parties] is impracticable; (2)... questions of law or fact [are] common to the class; (3) the claims ... are typical of the claims ... of the class; and (4) the [plaintiff would] fairly and adequately protect the interests of the class. 13 Rule 23(a) also requires that the case fall within one of the categories identified in Rule 23(6). 14
In this case, plaintiffs seek certification of a declaratory and injunctive class under 23(6)(2) on grounds "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." 15 Case law also recognizes that in exercising discretion to certify a class action, courts may take into account considerations not expressly dealt with in Rule 23. 16 One non-rule factor commonly considered is whether, in the first instance, class certification in certain cases is necessary. 17 In James v. Ball, the 9th Circuit
13 Fed R. Civ. P. 23(a). 14 See Fed. R. Civ. P. 23(b). 15 Doc. 44 at 25. 16 See CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1785.2 (3d ed. 2005) (citing authority). 17 See James v. Ball, 613 F.2d 180, 186 (9th Cir. 1979) rev'd on other ground~, 451 U.S. 355 (1981 ). See also CHARLES ALAN WRIGHT, ET AL. supra note 16 ("the need requirement now seems well-accepted as an appropriate consideration when certifying a Rule 23(b)(2) action.")
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addressed an analogous issue in an action challenging the constitutionality of an Arizona statute that denied the right of.non-landowners to vote in certain elections. 18 Denial of certification was held to be appropriate and within the "sound discretion of the district court." 19 The court held that "the [injunctive and declaratory] relief sought will, as a practical matter, produce the same result as formal class-wide relief."20
Here, as in James, all potential class members in this case would benefit from an injunction issued on behalf of the individually named plaintiffs.21 Any judgment implicating the constitutionality of Montana's driver's license revocation or reinstatement statutes would be binding on all Defendants and to the benefit of all potential class members.22
No useful need or purpose is served by certification of Plaintiffs' proposed

18 James, 613 F.2d at 182.

19 James, 613 F.2d at 186.

0 '

James,

613

F.2d

at

186

(citing

Craji

v.

Memphis

Light

Gas

&

Water

Div.,

534

F.2d

684, 686 (6th Cir. 1976)). See also.

21 See, e.g., Snake River Farmers' Ass 'n, Inc. v. US. Dept. ofLabor, 1991 WL 539566 (D. Idaho 1991); Arnett v. Strayhorn, 515 F. Supp. 2d 690, 698 (W.D. Tex. 2006), aff'd per curiam, 508 F.3d 1134 (5th Cir. 2007), cert. denied, 553 U.S. 1005 (2008); Mills v. District of Columbia, 266 F.R.D. 20 (D.D.C. 2010).

22 Plaintiffs' counsel acknowledged at the January 9, 2019, hearing that the injunctive relief sought would, if granted, apply to all class members.

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class. The costs and complexities associated with maintaining a class action outweigh the benefits class certification is intended to provide. Class certification is inappropriate and unnecessary.
ORDERED: Plaintiffs' Amended Motion for Class Certification is DENIED.
DATED this _i_tfray of January, 2019.
~Mf:d'"""'l United States District Judge
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