18BB,APPEAL,FILE,STAYED
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:18−cv−00467−TDS−LPA

JOHNSON, et al v. JESSUP Assigned to: CHIEF JUDGE THOMAS D. SCHROEDER Referred to: MAG/JUDGE L. PATRICK AULD Case in other court: 19−01421 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/30/2018 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

SETI JOHNSON ON BEHALF OF THEMSELVES AND THOSE OTHERS SIMILARILY SITUATED

represented by SAMUEL J. BROOKE SOUTHERN POVERTY LAW CENTER 400 WASHINGTON AVE. MONTGOMERY, AL 36104 334−956−8200 Fax: 334−956−8481 Email: samuel.brooke@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

CHRISTOPHER A. BROOK AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611−8004 919−834−3466 Fax: 866−511−1344 Email: cbrook@acluofnc.org TERMINATED: 04/17/2019 ATTORNEY TO BE NOTICED

CRISTINA M. BECKER AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611−8004 919−834−3466 Fax: 866−511−1344 Email: cbecker@acluofnc.org TERMINATED: 05/09/2019 ATTORNEY TO BE NOTICED

DANIELLE E. DAVIS SOUTHERN POVERTY LAW CENTER 400 WASHINGTON AVE. MONTGOMERY, AL 36104 334−956−8200 Fax: 334−956−8481 Email: danielle.davis@splcenter.org ATTORNEY TO BE NOTICED

EMILY C.R. EARLY SOUTHERN POVERTY LAW CENTER 400 WASHINGTON AVE. MONTGOMERY, AL 36104 404−221−4036 Fax: 404−221−5857 Email: emily.early@splcenter.org ATTORNEY TO BE NOTICED

EMILY E. SEAWELL

Case: 1:18-cv-467 document<docnum> filed <datefiled> 1 of 14

ACLU OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611 919−834−3466 Email: eseawell@acluofnc.org ATTORNEY TO BE NOTICED
IRENA COMO AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611−8004 919−834−3466 Email: icomo@acluofnc.org ATTORNEY TO BE NOTICED
IVY A. JOHNSON SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. HWY. 54, STE. 101 DURHAM, NC 27707 919−323−3380 Fax: 919−323−3942 Email: ivyjohnson@scsj.org ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. HWY. 54, STE. 101 DURHAM, NC 27707 919−323−3380 Fax: 919−323−3942 Email: jeffloperfido@scsj.org ATTORNEY TO BE NOTICED
NUSRAT J. CHOUDHURY AMERICAN CIVIL LIBERTIES UNION 125 BROAD STREET, 18TH FLOOR NEW YORK, NY 10004 212−519−7876 Fax: 212−549−2654 Email: nchoudhury@aclu.org ATTORNEY TO BE NOTICED
RODKANGYIL O. DANJUMA AMERICAN CIVIL LIBERTIES UNION 125 BROAD STREET, 18TH FLOOR NEW YORK, NY 10004 212−549−2563 Fax: 212−549−2654 Email: odanjuma@aclu.org ATTORNEY TO BE NOTICED
SNEHA M. SHAH AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611−8004 919−834−3466 Email: sshah@acluofnc.org ATTORNEY TO BE NOTICED
KRISTI L. GRAUNKE ACLU OF NORTH CAROLINA
Case: 1:18-cv-467 document<docnum> filed <datefiled> 2 of 14

Plaintiff SHAREE SMOOT ON BEHALF OF THEMSELVES AND THOSE OTHERS SIMILARILY SITUATED
Plaintiff

POB 28004 RALEIGH, NC 27611 919−354−5066 Email: kgraunke@acluofnc.org ATTORNEY TO BE NOTICED
represented by SAMUEL J. BROOKE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) TERMINATED: 04/17/2019 ATTORNEY TO BE NOTICED
CRISTINA M. BECKER (See above for address) TERMINATED: 05/09/2019 ATTORNEY TO BE NOTICED
DANIELLE E. DAVIS (See above for address) ATTORNEY TO BE NOTICED
EMILY C.R. EARLY (See above for address) ATTORNEY TO BE NOTICED
EMILY E. SEAWELL (See above for address) ATTORNEY TO BE NOTICED
IRENA COMO (See above for address) ATTORNEY TO BE NOTICED
IVY A. JOHNSON (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
NUSRAT J. CHOUDHURY (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL O. DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SNEHA M. SHAH (See above for address) ATTORNEY TO BE NOTICED
KRISTI L. GRAUNKE (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 1:18-cv-467 document<docnum> filed <datefiled> 3 of 14

MARIE BONHOMME−DICKS ON BEHALF OF THEMSELVES AND THOSE SIMILARILY SITUATED
Plaintiff NICHELLE YARBOROUGH ON BEHALF OF THEMSELVES AND THOSE SIMILARILY SITUATED

SAMUEL J. BROOKE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) TERMINATED: 04/17/2019 ATTORNEY TO BE NOTICED
CRISTINA M. BECKER (See above for address) TERMINATED: 05/09/2019 ATTORNEY TO BE NOTICED
DANIELLE E. DAVIS (See above for address) ATTORNEY TO BE NOTICED
EMILY C.R. EARLY (See above for address) ATTORNEY TO BE NOTICED
EMILY E. SEAWELL (See above for address) ATTORNEY TO BE NOTICED
IRENA COMO (See above for address) ATTORNEY TO BE NOTICED
IVY A. JOHNSON (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
NUSRAT J. CHOUDHURY (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL O. DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SNEHA M. SHAH (See above for address) ATTORNEY TO BE NOTICED
KRISTI L. GRAUNKE (See above for address) ATTORNEY TO BE NOTICED
represented by SAMUEL J. BROOKE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) TERMINATED: 04/17/2019

Case: 1:18-cv-467 document<docnum> filed <datefiled> 4 of 14

ATTORNEY TO BE NOTICED
CRISTINA M. BECKER (See above for address) TERMINATED: 05/09/2019 ATTORNEY TO BE NOTICED
DANIELLE E. DAVIS (See above for address) ATTORNEY TO BE NOTICED
EMILY C.R. EARLY (See above for address) ATTORNEY TO BE NOTICED
EMILY E. SEAWELL (See above for address) ATTORNEY TO BE NOTICED
IRENA COMO (See above for address) ATTORNEY TO BE NOTICED
IVY A. JOHNSON (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
NUSRAT J. CHOUDHURY (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL O. DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SNEHA M. SHAH (See above for address) ATTORNEY TO BE NOTICED
KRISTI L. GRAUNKE (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
TORRE JESSUP IN HIS OFFICIAL CAPCITY AS COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES

represented by KATHRYNE E. HATHCOCK N. C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27602−0629 919−716−6650 Fax: 919−716−6708 Email: khathcock@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEIL C. DALTON N. C. DEPARTMENT OF JUSTICE 114 W. Edenton Street Post Office Box 629

Case: 1:18-cv-467 document<docnum> filed <datefiled> 5 of 14

RALEIGH, NC 27690−0629 919−716−6650 Fax: 919−716−6708 Email: ndalton@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALEXANDER MCCLURE PETERS N.C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27602−0629 919−716−6913 Fax: 919−716−6763 Email: apeters@ncdoj.gov ATTORNEY TO BE NOTICED
ANN W. MATTHEWS N.C. DEPT. OF JUSTICE OFFICE OF THE ATTORNEY GENERAL 9001 MAIL SERVICE CTR. RALEIGH, NC 27699 919−733−7408 Fax: 919−733−2947 Email: amatthews@ncdoj.gov TERMINATED: 12/21/2018 ATTORNEY TO BE NOTICED
STEPHANIE A. BRENNAN N. C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27603 919−716−6920 Fax: 919−716−6764 Email: sbrennan@ncdoj.gov ATTORNEY TO BE NOTICED

Date Filed 05/30/2018
05/30/2018 05/30/2018 05/30/2018 05/30/2018 05/30/2018
05/30/2018

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief (Class Action) against Torre Jessup ( Filing fee $ 400 receipt number 0418−2358880.), filed by Seti Johnson, Sharee Smoot. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons)(GRAUNKE, KRISTI) (Entered: 05/30/2018)
2 MOTION for Preliminary Injunction by Seti Johnson, Sharee Smoot. Response to Motion due by 6/20/2018 (Attachments: # 1 Memorandum in Support)(GRAUNKE, KRISTI) (Entered: 05/30/2018)
3 MOTION to Certify Class by Seti Johnson, Sharee Smoot. Response to Motion due by 6/20/2018 (Attachments: # 1 Memorandum in Support)(GRAUNKE, KRISTI) (Entered: 05/30/2018)
4 DECLARATION of Seti Johnson by Plaintiff Seti Johnson. (GRAUNKE, KRISTI) (Entered: 05/30/2018)
5 DECLARATION of Sharee Smoot by Plaintiff Sharee Smoot. (Attachments: # 1 Attachment A, # 2 Attachment B)(GRAUNKE, KRISTI) (Entered: 05/30/2018)
6 DECLARATION of Samuel Brooke re 3 MOTION to Certify Class , 2 MOTION for Preliminary Injunction by Plaintiffs Seti Johnson, Sharee Smoot. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(GRAUNKE, KRISTI) (Entered: 05/30/2018)
CASE REFERRED to Mediation pursuant to Local Rule 83.9b of the Rules of Practice and Procedure of this Court. Please go to our website under Attorney Information for a list of mediators which must be served on all parties. (Coyne, Michelle) (Entered:

Case: 1:18-cv-467 document<docnum> filed <datefiled> 6 of 14

05/30/2018
05/30/2018
05/30/2018 05/30/2018 05/30/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 06/01/2018 06/04/2018 06/05/2018 06/05/2018
06/06/2018 06/06/2018 06/15/2018

05/30/2018)
7 MEMORANDUM filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 2 MOTION for Preliminary Injunction (refiled as separate docket event per instruction by Clerk) filed by SETI JOHNSON, SHAREE SMOOT. (GRAUNKE, KRISTI) (Entered: 05/30/2018)
8 MEMORANDUM filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 3 MOTION to Certify Class (refiled as separate docket event per instruction by Clerk) filed by SETI JOHNSON, SHAREE SMOOT. (GRAUNKE, KRISTI) (Entered: 05/30/2018)
9 NOTICE of Appearance by attorney CHRISTOPHER A. BROOK on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (BROOK, CHRISTOPHER) (Entered: 05/30/2018)
10 NOTICE of Appearance by attorney CRISTINA M. BECKER on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (BECKER, CRISTINA) (Entered: 05/30/2018)
11 NOTICE of Appearance by attorney SNEHA M. SHAH on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (SHAH, SNEHA) (Entered: 05/30/2018)
12 NOTICE of Appearance by attorney SAMUEL J. BROOKE on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (BROOKE, SAMUEL) (Entered: 05/31/2018)
13 NOTICE of Appearance by attorney EMILY C.R. EARLY on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (EARLY, EMILY) (Entered: 05/31/2018)
Case ASSIGNED to CHIEF JUDGE THOMAS D. SCHROEDER and MAGISTRATE JUDGE L. PATRICK AULD. Set flag for Magistrate Judge L. Patrick Auld. (Coyne, Michelle) (Entered: 05/31/2018)
14 Summons Issued as to TORRE JESSUP. (Coyne, Michelle) (Entered: 05/31/2018)
15 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Attachments: # 1 consent form)(Coyne, Michelle) (Entered: 05/31/2018)
16 NOTICE of Appearance by attorney NUSRAT J. CHOUDHURY on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (CHOUDHURY, NUSRAT) (Entered: 05/31/2018)
17 NOTICE of Appearance by attorney RODKANGYIL O. DANJUMA on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (DANJUMA, RODKANGYIL) (Entered: 05/31/2018)
18 Declaration of Proof of Service served on TORRE JESSUP, in his official capacity, on 06/01/2018, filed by SETI JOHNSON, SHAREE SMOOT. . (BECKER, CRISTINA) (Entered: 06/01/2018)
19 NOTICE of Appearance by attorney KATHRYNE E. HATHCOCK on behalf of Defendant TORRE JESSUP (HATHCOCK, KATHRYNE) (Entered: 06/04/2018)
20 NOTICE of Appearance by attorney NEIL C. DALTON on behalf of Defendant TORRE JESSUP (DALTON, NEIL) (Entered: 06/05/2018)
21 MOTION for Hearing re 2 MOTION for Preliminary Injunction , 3 MOTION to Certify Class by SETI JOHNSON, SHAREE SMOOT. Responses due by 6/26/2018 (Attachments: # 1 Exhibit A − DMV Official Notice to Seti Johnson, # 2 Text of Proposed Order)(BROOKE, SAMUEL) (Entered: 06/05/2018)
Motion Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: 21 MOTION for Hearing re 2 MOTION for Preliminary Injunction and 3 MOTION to Certify Class. (Engle, Anita) (Entered: 06/06/2018)
22 NOTICE of Appearance by attorney DANIELLE E. DAVIS on behalf of Plaintiffs SETI JOHNSON, SHAREE SMOOT (DAVIS, DANIELLE) (Entered: 06/06/2018)
23 MOTION for Extension of Time to File Answer re 1 Complaint, by TORRE JESSUP. (Attachments: # 1 Text of Proposed Order)(HATHCOCK, KATHRYNE) (Entered: 06/15/2018)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 7 of 14

06/15/2018 06/15/2018 06/18/2018 06/18/2018
06/20/2018 06/20/2018

24 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction by TORRE JESSUP. (Attachments: # 1 Text of Proposed Order)(HATHCOCK, KATHRYNE) (Entered: 06/15/2018)
25 MOTION for Extension of Time to File Response/Reply as to 3 MOTION to Certify Class by TORRE JESSUP. (Attachments: # 1 Text of Proposed Order)(HATHCOCK, KATHRYNE) (Entered: 06/15/2018)
Motions Referred to MAG/JUDGE L. PATRICK AULD RE: 25 MOTION for Extension of Time to File Response/Reply as to 3 MOTION to Certify Class, 23 MOTION for Extension of Time to File Answer re 1 Complaint, and 24 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction. (Engle, Anita) (Entered: 06/18/2018)
26 RESPONSE filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 25 MOTION for Extension of Time to File Response/Reply as to 3 MOTION to Certify Class filed by TORRE JESSUP, 23 MOTION for Extension of Time to File Answer re 1 Complaint, filed by TORRE JESSUP, 24 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction filed by TORRE JESSUP filed by SETI JOHNSON, SHAREE SMOOT. (BROOK, CHRISTOPHER) (Entered: 06/18/2018)
TEXT ORDER granting 23 Motion for Extension of Time to Answer or Otherwise Plead. Defendant shall answer or otherwise respond to 1 Complaint by 07/31/2018. Issued by MAG/JUDGE L. PATRICK AULD on 06/20/2018. (AULD, L.) (Entered: 06/20/2018)
TEXT ORDER granting 24 Motion for Extension of Time and 25 Motion for Extension of Time. Defendant shall file any response(s) to 2 Motion for Preliminary Injunction and 3 Motion for Class Certification by 07/31/2018. Three weeks ago, Plaintiffs Seti Johnson and Sharee Smoot (with −− according to 6 Declaration by one of their ten attorneys −− the financial backing of four different organizations) filed 1 Complaint, 2 Motion, and 3 Motion, all attacking a North Carolina driver license revocation statute, N.C. Gen. Stat. s 20−24.1. Those filings and the related memoranda, declarations, and exhibits submitted by Plaintiffs that day spanned more than 300 pages, sought three different forms of declaratory relief under at least two different clauses of the Fourteenth Amendment to the United States Constitution, demanded entry of three different injunctions, and requested certification of two different classes of putative plaintiffs. A week later, Plaintiffs filed 21 Motion to Set Hearing, asking the Court to hold a hearing on 2 Motion and 3 Motion on a date soon enough "so th[o]se Motions may be resolved prior to July 28, 2018. Plaintiffs ma[d]e th[at] request because the North Carolina Division of Motor Vehicles (the 'DMV') ha[d] notified Plaintiff Johnson that his driver's license revocation will become effective at 12:01 a.m. on July 28, 2018." Last week, Defendant filed 24 Motion and 25 Motion, seeking an extension of his deadline to respond to 2 Motion and 3 Motion until 07/31/2018. In doing so, counsel for Defendant represented as an officer of the Court that he "need[ed] additional time to properly investigate the allegations of [ 2 Motion] and to make a proper Response" and "need[ed] additional time in which to complete Defendant's Response to [ 3 Motion]," respectively. In addition, counsel for Defendant reported that he "ha[d] requested specific records and policies (if such records exist) of Defendant regarding transactions between Plaintiffs and Defendant and information regarding the proposed classes of unnamed Plaintiffs." Finally, "Defendant agree[d] to stay the suspension of Plaintiff Johnson's suspension pending resolution of [ 2 Motion]." Plaintiffs now have responded in opposition to 24 Motion and 25 Motion. In doing so, Plaintiffs offered to accept an extension for Defendant of "seven or even fourteen days," but argued that "a 39−day extension is not warranted and unjustifiably continues the irreparable injury Plaintiff Smoot and other putative class members are facing." In other words, Plaintiffs (along with the two of their attorneys who signed 26 Response) effectively charged that, by filing 24 Motion and 25 Motion and (falsely, in the view of Plaintiffs and their two signing attorneys) claiming that a legitimate need existed for an extension until 07/31/2018, Defendant and his counsel violated their obligations under Federal Rule of Civil Procedure 11(b)(1) to refrain from making filings for an "improper purpose" and to "cause unnecessary delay," as well as under Federal Rule of Civil Procedure 11(b)(2) and (3) to refrain from making filings lacking a good faith basis in law and fact. To support such serious (if implicit) allegations, Plaintiffs (and their two signing attorneys)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 8 of 14

offered inadequate support. First, Plaintiffs argued that, of their three claims, two "are challenges to the text of N.C.G.S. s 20−24.1 for which no particular records or policies are going to be germane" and the third "challenges the notice the DMV provides to drivers when their licenses are revoked," a "one−page standard notice," which "[c]ounsel for Defendant do[es] not need 39 days to obtain and understand." That line of argument raises the following question: If this case is so simple that, to resolve a preliminary injunction motion and a dual−class certification motion, one need only read a statute and a related, one−page government notice (without gathering any other documents, doing any other investigation, and conducting any other research), why did Plaintiffs enlist 10 attorneys, from four different organizations, based in four different states, to draft and to compile the hundreds of pages of documents making up and supporting 1 Complaint, 2 Motion, and 3 Motion. Notably, 6 Declaration (by one of Plaintiffs' ten attorneys) avers that Plaintiffs' attorneys are not just any attorneys, but rather highly−credentialed graduates of the most prestigious law schools in the country with years of combined federal clerkship experience, as well as highly−specialized training and experience in handling not only constitutional class action litigation, but also the precise form of impact litigation at issue in this case. Indeed, according to 6 Declaration, two of Plaintiffs' attorneys are so well−versed in this particular area that they "are currently developing litigation and advocacy to challenge such [license revocation] practices and advise state affiliates of [one of the organizations involved in this case] on how to counter such practices through litigation and legislative and policy advocacy." Additionally, 6 Declaration reports that the organizations directing this litigation on Plaintiffs' behalf have decades of experience with cases of this sort and even have gone so far as to allow Plaintiffs' ten attorneys "to consult [with] colleagues who litigated [other similar] lawsuit[s] as needed." Lastly, 6 Declaration states that the organizations behind this lawsuit "have spent substantial time and effort to investigate this case and to understand how N.C.G.S. ss 20−24.1 and 20−24.2 operate and are implemented by the state courts and the [DMV]. This includes reviewing court and DMV records, observing court proceedings, and speaking with court personnel and court defendants about court and DMV practices." If ten highly−qualified and super−specialized attorneys needed to engage in so much preparation to bring 2 Motion and 3 Motion, Plaintiffs cannot plausibly maintain that Defendant and his counsel essentially do not need to do anything but read a statute and a government notice to respond to 2 Motion and 3 Motion. Next, Plaintiffs assert that Defendant's agreement to stay further action on Plaintiff Johnson's license revocation pending resolution of 2 Motion, is irrelevant, because Plaintiffs' urgent need for resolution of 2 Motion had nothing to do with Plaintiff Johnson's (formerly) impending revocation date of 07/28/2018, but rather always had rested equally on concern about "[t]he constant and irreparable harm to [Plaintiff] Smoot and thousands of other [putative class members, which concern] weighs heavily against the lengthy 39−day extension Defendant has requested here." That contention totally ignores the fact that Plaintiffs did not request a temporary restraining order when they filed this action and did not request any particular setting of a hearing on 2 Motion, until Plaintiff Johnson received the revocation notice that Plaintiffs referenced in (and attached to) 21 Motion, which expressly requested resolution of 2 Motion in advance of the very date that Plaintiff Johnson's revocation would take effect. These circumstances strongly suggest that Plaintiffs' downplaying of the significance of Defendant's agreement to stay further action as to Plaintiff Johnson and shifting of rationales for urgent action on 2 Motion represent gamesmanship. In a related (and final) matter, the Court's preliminary research indicates that N.C. Gen. Stat. s 20−24.1 has been in effect for approximately 25 years. Plaintiffs have offered no explanation as to why after their backing organizations waited a quarter century to attack a state statute, the impact of that statute suddenly constitutes an emergency situation that warrants denying the official representative of a sovereign state a total of 60 days to prepare a response to voluminous filings compiled after extensive investigation by a four−organization, ten−attorney team of class−action specialists. For all of these reasons, the Court finds good cause under Federal Rule of Civil Procedure 6(b)(1)(A) for Defendant's extension requests in 24 Motion and 25 Motion. The Court sincerely hopes that Plaintiffs' (and their attorneys' and financing organizations') approach to the simple matter of a modest extension of time at the very inception of the case does not represent the litigation style they intend to bring to this action going forward. Issued by MAG/JUDGE L. PATRICK AULD on 06/20/2018. (AULD, L.) (Entered: 06/20/2018)
Case: 1:18-cv-467 document<docnum> filed <datefiled> 9 of 14

06/21/2018 07/24/2018 07/27/2018 07/30/2018 07/30/2018 07/30/2018 07/30/2018 07/30/2018 07/31/2018
08/07/2018 08/07/2018 08/07/2018 08/07/2018 08/07/2018 08/07/2018
08/07/2018
08/10/2018 08/21/2018

27 NOTICE of Appearance by attorney ALEXANDER MCCLURE PETERS on behalf of Defendant TORRE JESSUP (PETERS, ALEXANDER) (Entered: 06/21/2018)
28 Suggestion of Subsequently Decided Authority re 2 MOTION for Preliminary Injunction , 3 MOTION to Certify Class by Plaintiffs SETI JOHNSON, SHAREE SMOOT. (Attachments: # 1 Exhibit A)(BROOKE, SAMUEL) (Entered: 07/24/2018)
29 NOTICE of Appearance by attorney ANN W. MATTHEWS on behalf of Defendant TORRE JESSUP (MATTHEWS, ANN) (Entered: 07/27/2018)
30 WITHDRAWAL of Motion by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 3 MOTION to Certify Class filed by SHAREE SMOOT, SETI JOHNSON (BROOKE, SAMUEL) (Entered: 07/30/2018)
31 WITHDRAWAL of Motion by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 2 MOTION for Preliminary Injunction filed by SHAREE SMOOT, SETI JOHNSON (BROOKE, SAMUEL) (Entered: 07/30/2018)
32 NOTICE by SETI JOHNSON, SHAREE SMOOT of Intent to File First Amended Complaint (BROOKE, SAMUEL) (Entered: 07/30/2018)
33 MOTION for Extension of Time to File Answer re 1 Complaint, by TORRE JESSUP. (Attachments: # 1 Text of Proposed Order)(MATTHEWS, ANN) (Entered: 07/30/2018)
Motion Referred to MAG/JUDGE L. PATRICK AULD RE: 33 MOTION for Extension of Time to File Answer re 1 Complaint. (Engle, Anita) (Entered: 07/30/2018)
34 ORDER signed by MAG/JUDGE L. PATRICK AULD on 07/31/2018, that Defendant's Motion is GRANTED, and Defendant shall have up to and including August 21, 2018, or 14 days after filing and serving Plaintiffs' First Amended Complaint, whichever is later, to serve a Response to Plaintiffs' Complaint or First Amended Complaint. (Taylor, Abby) (Entered: 07/31/2018)
35 First AMENDED COMPLAINT against defendant TORRE JESSUP, filed by SETI JOHNSON, SHAREE SMOOT.(BROOKE, SAMUEL) (Entered: 08/07/2018)
36 Second MOTION to Certify Class by SETI JOHNSON, SHAREE SMOOT. Response to Motion due by 8/28/2018 (BROOKE, SAMUEL) (Entered: 08/07/2018)
37 MEMORANDUM filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 36 Second MOTION to Certify Class filed by SETI JOHNSON, SHAREE SMOOT. (BROOKE, SAMUEL) (Entered: 08/07/2018)
38 Second MOTION for Preliminary Injunction by SETI JOHNSON, SHAREE SMOOT. Response to Motion due by 8/28/2018 (BROOKE, SAMUEL) (Entered: 08/07/2018)
39 MEMORANDUM filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 38 Second MOTION for Preliminary Injunction filed by SETI JOHNSON, SHAREE SMOOT. (BROOKE, SAMUEL) (Entered: 08/07/2018)
40 DECLARATION filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 38 Second MOTION for Preliminary Injunction , 36 Second MOTION to Certify Class of Marie Bonhomme−Dicks filed by SETI JOHNSON, SHAREE SMOOT. (BROOKE, SAMUEL) (Entered: 08/07/2018)
41 DECLARATION filed by Plaintiffs SETI JOHNSON, SHAREE SMOOT re 38 Second MOTION for Preliminary Injunction , 36 Second MOTION to Certify Class of Nichelle Yarborough filed by SETI JOHNSON, SHAREE SMOOT. (Attachments: # 1 Exhibit A)(BROOKE, SAMUEL) (Entered: 08/07/2018)
42 NOTICE of Appearance by attorney JEFFREY LOPERFIDO on behalf of Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH (LOPERFIDO, JEFFREY) (Entered: 08/10/2018)
43 DEFENDANT'S ANSWER to Amended Complaint by TORRE JESSUP. (DALTON, NEIL) (Entered: 08/21/2018)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 10 of 14

08/23/2018 08/28/2018 08/28/2018 08/28/2018 08/28/2018 09/11/2018
09/11/2018
09/18/2018 09/19/2018 09/20/2018 09/20/2018
09/20/2018 10/03/2018 12/12/2018

44 NOTICE of Initial Pretrial Conference Hearing: Initial Pretrial Conference Hearing set for 9/24/2018 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE L. PATRICK AULD. (Garrett, Kim) (Entered: 08/23/2018)
45 RESPONSE in Opposition re 38 Second MOTION for Preliminary Injunction filed by SHAREE SMOOT, SETI JOHNSON filed by TORRE JESSUP. Replies due by 9/11/2018 (HATHCOCK, KATHRYNE) (Entered: 08/28/2018)
46 MOTION for Judgment on the Pleadings by TORRE JESSUP. Response to Motion due by 9/18/2018 (HATHCOCK, KATHRYNE) (Entered: 08/28/2018)
47 MEMORANDUM filed by Defendant TORRE JESSUP re 46 MOTION for Judgment on the Pleadings filed by TORRE JESSUP. (HATHCOCK, KATHRYNE) (Entered: 08/28/2018)
48 RESPONSE in Opposition re 36 Second MOTION to Certify Class filed by SHAREE SMOOT, SETI JOHNSON filed by TORRE JESSUP. Replies due by 9/11/2018 (HATHCOCK, KATHRYNE) (Entered: 08/28/2018)
49 REPLY, filed by Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH, to Response to 38 Second MOTION for Preliminary Injunction filed by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (BROOKE, SAMUEL) (Entered: 09/11/2018)
50 REPLY, filed by Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH, to Response to 36 Second MOTION to Certify Class filed by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (DAVIS, DANIELLE) (Entered: 09/11/2018)
51 RESPONSE in Opposition re 46 MOTION for Judgment on the Pleadings filed by TORRE JESSUP filed by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. Replies due by 10/2/2018 (LOPERFIDO, JEFFREY) (Entered: 09/18/2018)
52 Rule 26(f) Report (Joint) filed by all parties by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (Attachments: # 1 Text of Proposed Order)(BROOK, CHRISTOPHER) (Entered: 09/19/2018)
Motions Referred: RE: 52 Rule 26(f) Report (Joint) filed by all parties, to MAG/JUDGE L. PATRICK AULD (Garrett, Kim) (Entered: 09/20/2018)
TEXT ORDER granting the request for continuance embedded within 52 Joint Rule 26(f) Report. The Initial Pretrial Conference set for 09/24/2018, is rescheduled for 10 a.m. on 12/17/2018, in Courtroom 1A of the L. Richardson Preyer United States Courthouse in Greensboro, North Carolina. Counsel for the parties shall hold another meeting in advance of the rescheduled Initial Pretrial Conference and shall file a new joint (or new separate) reports regarding case−management and scheduling issues on or before 12/12/2018. If any dispositive motions remain pending at the time of such filing and the parties continue to disagree about whether discovery should commence during such pendency, they shall fully address such matters in their separate reports. Issued by MAG/JUDGE L. PATRICK AULD on 09/20/2018. (AULD, L.) (Entered: 09/20/2018)
Reset Hearings: Initial Pretrial Conference reset for 12/17/2018 10:00 AM in Greensboro Courtroom #1A before MAG/JUDGE L. PATRICK AULD. (Garrett, Kim) (Entered: 09/20/2018)
Motions Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: 36 Second MOTION to Certify Class, 38 Second MOTION for Preliminary Injunction, and 46 MOTION for Judgment on the Pleadings. (Engle, Anita) (Entered: 10/03/2018)
53 Rule 26(f) Report (Joint) filed by all parties by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (Attachments: # 1 Text of Proposed Order)(BROOKE, SAMUEL) (Entered: 12/12/2018)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 11 of 14

12/13/2018 12/13/2018
12/13/2018 12/21/2018 12/21/2018 12/21/2018 01/23/2019 01/23/2019 01/23/2019 01/24/2019 01/24/2019 01/24/2019 01/25/2019 01/25/2019 01/25/2019

Motions Referred: RE: 53 Rule 26(f) Report (Joint) filed by all parties, to MAG/JUDGE L. PATRICK AULD (Garrett, Kim) (Entered: 12/13/2018)
TEXT ORDER terminating 53 Second Joint Rule 26(f) Report, re−setting the Initial Pretrial Conference for 10 a.m. on 01/28/2019 in Courtroom 1A of the L. Richardson Preyer United States Courthouse in Greensboro, North Carolina, and requiring the filing, on or before 01/23/2019, of joint or separate reports that comply with Local Rule 16.2 or 16.3 or, if one or more parties wishes to further defer such filing(s), a motion seeking such relief with a detailed account of the efforts the parties have undertaken regarding the matters identified in 53 Second Joint Rule 26(f) Report as grounds for deferring entry of a scheduling order. Issued by MAG/JUDGE L. PATRICK AULD on 12/13/2018. (AULD, L.) (Entered: 12/13/2018)
Reset Hearings: Initial Pretrial Conference reset for 1/28/2019 10:00 AM in Greensboro Courtroom #1A before MAG/JUDGE L. PATRICK AULD. (Garrett, Kim) (Entered: 12/13/2018)
54 MOTION to Withdraw as Attorney ANN W. MATTHEWS by on behalf of TORRE JESSUP. (Attachments: # 1 Text of Proposed Order)(MATTHEWS, ANN) (Entered: 12/21/2018)
Motion Referred to MAG/JUDGE L. PATRICK AULD RE: 54 MOTION to Withdraw as Attorney ANN W. MATTHEWS. (Engle, Anita) (Entered: 12/21/2018)
TEXT ORDER granting 54 Motion to Withdraw. Attorney ANN W. MATTHEWS is terminated as counsel of record for Defendant. Issued by MAG/JUDGE L. PATRICK AULD on 12/21/2018. (AULD, L.) (Entered: 12/21/2018)
55 STIPULATION Joint Proposed Statement of Facts by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (BROOKE, SAMUEL) (Entered: 01/23/2019)
56 THIRD JOINT RULE 26(F) REPORT filed by all parties. Est. Trial Days: 2. (BROOKE, SAMUEL) Modified on 1/23/2019 to correct event to a motion. (Taylor, Abby). Modified on 1/24/2019 (Garrett, Kim). Requested Amended Report with dates certain (Entered: 01/23/2019)
57 MOTION Dispense with Mediation by TORRE JESSUP. Response to Motion due by 2/13/2019 (Attachments: # 1 Text of Proposed Order)(HATHCOCK, KATHRYNE) (Entered: 01/23/2019)
Motion Referred to MAG/JUDGE L. PATRICK AULD RE: 57 MOTION Dispense with Mediation. (Engle, Anita) (Entered: 01/24/2019)
58 Joint MOTION for Extension of Time to Complete Discovery and Related Deadlines by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (Attachments: # 1 Text of Proposed Order)(BROOKE, SAMUEL) (Entered: 01/24/2019)
59 JOINT STATUS REPORT Third Amended filed by all parties. Est. Trial Days: 2. (BROOKE, SAMUEL) (Entered: 01/24/2019)
Motion Referred to MAG/JUDGE L. PATRICK AULD RE: 58 Joint MOTION for Extension of Time to Complete Discovery and Related Deadlines. (Engle, Anita) (Entered: 01/25/2019)
TEXT ORDER granting 57 Motion to Dispense with Mediation. The Court relieves the parties of any obligation to participate in mediation. Issued by MAG/JUDGE L. PATRICK AULD on 01/25/2019. (AULD, L.) (Entered: 01/25/2019)
TEXT ORDER terminating 56 Third Joint Rule 26(f) Report, granting in part 58 Joint Motion for Continuance of the Discovery Commencement Date and Related Discovery and Scheduling Deadlines, re−setting the Initial Pretrial Conference for 10 a.m. on 04/29/2019 in Courtroom 1A of the L. Richardson Preyer United States Courthouse in Greensboro, North Carolina, and requiring the filing, on or before 04/24/2019, of joint or separate reports that comply with Local Rule 16.2 or 16.3. Issued by MAG/JUDGE L. PATRICK AULD on 01/25/2019. (AULD, L.) (Entered: 01/25/2019)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 12 of 14

01/28/2019 02/11/2019 03/06/2019 03/13/2019 03/13/2019 03/13/2019
03/14/2019 03/31/2019
04/03/2019 04/17/2019 04/17/2019 04/17/2019 04/18/2019

Set/Reset Hearings: Initial Pretrial Conference set for 4/29/2019 10:00 AM in Greensboro Courtroom #1A before MAG/JUDGE L. PATRICK AULD. (Taylor, Abby) (Entered: 01/28/2019)
60 NOTICE of Hearing: Motion Hearing set for 3/13/2019 at 02:00 PM in Winston−Salem Courtroom #2 before CHIEF JUDGE THOMAS D. SCHROEDER. (Engle, Anita) (Entered: 02/11/2019)
61 Suggestion of Subsequently Decided Authority re 45 Response in Opposition to Motion, 48 Response in Opposition to Motion, 46 MOTION for Judgment on the Pleadings by Defendant TORRE JESSUP. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(HATHCOCK, KATHRYNE) (Entered: 03/06/2019)
62 AFFIDAVIT OF LANEE GLASS filed by Defendant TORRE JESSUP. (DALTON, NEIL) (Entered: 03/13/2019)
63 DECLARATION filed by Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH re 38 Second MOTION for Preliminary Injunction filed by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (Attachments: # 1 Exhibit A)(EARLY, EMILY) (Entered: 03/13/2019)
Minute Entry for proceedings held before CHIEF JUDGE THOMAS D. SCHROEDER in WS−2: Motion Hearing held on 3/13/2019 regarding 38 Second MOTION for Preliminary Injunction 36 Second MOTION to Certify Class and 46 MOTION for Judgment on the Pleadings. Attorneys Samuel Brooke and Emily Early present for the Plaintiffs. Attorneys Kathryne Hathcock and Neil Dalton present for the Defendants. Arguments presented. Written Order forthcoming. (Court Reporter Briana Bell.) (Engle, Anita) (Entered: 03/13/2019)
64 SUPPLEMENT re 38 Second MOTION for Preliminary Injunction , 36 Second MOTION to Certify Class by Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. (BROOKE, SAMUEL) (Entered: 03/14/2019)
65 MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 3/31/2019. IT IS ORDERED that the Commissioner's motion for judgment on the pleadings (Doc. 46 ) is GRANTED IN PART and DENIED IN PART, Plaintiffs' second motion for class certification (Doc. 36 ) is GRANTED IN PART and Plaintiffs' second motion for preliminary injunction (Doc. 38 ) is DENIED.(Engle, Anita) (Main Document 65 replaced on 4/2/2019 due to technical issue.) (Engle, Anita). (Entered: 03/31/2019)
66 NOTICE of Appearance by attorney STEPHANIE A. BRENNAN on behalf of Defendant TORRE JESSUP (BRENNAN, STEPHANIE) (Entered: 04/03/2019)
67 NOTICE of Appearance by attorney IVY A. JOHNSON on behalf of Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH (JOHNSON, IVY) (Entered: 04/17/2019)
68 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. IRENA COMO is substituted as counsel for Plaintiffs. Attorney CHRISTOPHER A. BROOK terminated. (COMO, IRENA) (Entered: 04/17/2019)
69 NOTICE OF APPEAL as to 65 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction, Order on Motion for Judgment on the Pleadings by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. Filing fee $ 505, receipt number 0418−2552464. (GRAUNKE, KRISTI) (Entered: 04/17/2019)
70 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 69 Notice of Appeal, (Taylor, Abby) (Main Document 70 replaced on 4/18/2019 for correction in text) (Taylor, Abby). Modified on 4/18/2019 (Taylor, Abby). (Entered: 04/18/2019)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 13 of 14

04/19/2019 04/22/2019 04/23/2019 04/23/2019
04/25/2019 04/26/2019 05/09/2019 07/02/2019
03/27/2020

71 NOTICE of Docketing Record on Appeal from USCA re 69 Notice of Appeal, filed by NICHELLE YARBOROUGH, MARIE BONHOMME−DICKS, SHAREE SMOOT, SETI JOHNSON. USCA Case Number 19−1421. Case Manager: Emily Borneisen. (Taylor, Abby) (Entered: 04/19/2019)
72 Joint MOTION to Stay District Court Proceedings Pending Appeal by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. Response to Motion due by 5/13/2019 (Attachments: # 1 Text of Proposed Order)(BROOKE, SAMUEL) (Entered: 04/22/2019)
Motion Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: 72 Joint MOTION to Stay District Court Proceedings Pending Appeal. (Engle, Anita) (Entered: 04/23/2019)
73 ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 04/23/2019, that this action is STAYED pending a decision on Plaintiffs' appeal before the U.S. Court of Appeals for the Fourth Circuit and the parties' deadline to file a joint proposed Rule 26(f) report by April 24, 2019 and the parties' Initial Pretrial Conference on April 29, 2019 (see Doc. 58 ) is CANCELLED. FURTHER that the parties are to submit a joint status report to this court within 14 days of the Fourth Circuit's issuance of its mandate in connection with Plaintiff's appeal.(Taylor, Abby) (Entered: 04/23/2019)
Case Stayed. (See 73 Order) (Engle, Anita) (Entered: 04/25/2019)
74 ***FILED IN ERROR*** TRANSCRIPT REQUEST by MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH for proceedings held on 3/13/19 before Judge Thomas Schroeder, re 69 Notice of Appeal, Transcript due by 5/28/2019. (BROOKE, SAMUEL) Modified on 4/29/2019 to mark filed in error. (Sheets, Jamie) (Entered: 04/26/2019)
75 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Plaintiffs MARIE BONHOMME−DICKS, SETI JOHNSON, SHAREE SMOOT, NICHELLE YARBOROUGH. EMILY E. SEAWELL is substituted as counsel for Plaintiffs. Attorney CRISTINA M. BECKER terminated. (SEAWELL, EMILY) (Entered: 05/09/2019)
76 Transcript of Proceedings held on 03/13/2019, before Judge Thomas D. Schroeder. Court Reporter Briana L. Bell, Telephone number 336−734−2514. Email: brinesbit@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 7/26/2019. Redacted Transcript Deadline set for 8/5/2019. Release of Transcript Restriction set for 10/3/2019. (Bell, Briana) (Main Document 76 replaced on 7/19/2019) (Contreras, Jamie). (Entered: 07/02/2019)
77 USCA ORDER. The court grants the motion to withdraw Matthew W. Sawchak from further representation on appeal. USCA Case Number 19−1421. (Sheets, Jamie) (Entered: 03/27/2020)

Case: 1:18-cv-467 document<docnum> filed <datefiled> 14 of 14

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SETI JOHNSON and SHAREE SMOOT, on behalf of themselves and those similarily situated,

Plaintiffs, v.

Case No. __________________________

TORRE JESSUP, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles,

(CLASS ACTION)

Defendant.

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT

1.

Plaintiff Mr. Seti Johnson, a 27-year-old Black father of three, faces an

impossible dilemma. Because he has been unemployed and cannot afford to pay off a

traffic ticket, the North Carolina Division of Motor Vehicles (the “DMV”) has

automatically entered an order revoking his license, which will become indefinitely

effective on or around July 24, 2018. Mr. Johnson has just obtained a new job, which

provides a potential path to upward mobility and to paying off that ticket. Without a

driver’s license, he will have to either forego the job and figure out a different way to get

his children to school, daycare, and the doctor’s office, or he will have to illegally drive.

2.

Plaintiff Ms. Smoot, a 31-year-old Black mother, faces the same dilemma.

Her license was revoked in 2016 and 2018 because she has been unable to pay her traffic

1

Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 1 of 35

tickets. A revoked license has forced her to make the difficult choice of either driving

illegally and risk arrest or additional tickets every day simply because there is no other way

for her to support herself, her daughter, and her grandmother or stay at home and lose her

job and ability to provide for her and her family’s daily needs.

3.

Mr. Johnson’s and Ms. Smoot’s plights are common throughout North

Carolina. The DMV has indefinitely revoked the drivers’ licenses of hundreds of

thousands of people who cannot afford to pay fines, penalties, and court costs (hereinafter

“fines and costs”) assessed for traffic offenses. In a state where a driver’s license is

indispensable to mobility and economic self-sufficiency, this wealth-based license

revocation scheme strips impoverished North Carolinians’ of their capacity to meet their

basic needs and those of their families. As a result, hundreds of thousands of North

Carolinians cannot legally use a car to secure and maintain employment, take their children

to and from school, attend medical appointments, or travel to buy groceries needed for

daily life. This license revocation scheme forces the most economically vulnerable further

into poverty, in violation of their right to due process and equal protection of the law under

the U.S. Constitution.

4.

The DMV automatically revokes a motorist’s driver’s license for an

indefinite period of time if the motorist is reported for nonpayment of a traffic ticket within

forty days. There is no hearing or inquiry into the driver’s ability to pay before the

imposition of this additional, unnecessary punishment. The revocation notice that the

DMV provides the driver makes clear the driver must pay the citation in full or the

2 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 2 of 35

revocation will become effective sixty days later, and it fails to disclose any other

alternatives for people who cannot afford to pay in full. This automatic revocation scheme

occurs without any determination of ability to pay, sufficient notice, and an opportunity to

be heard, in violation of core principles of due process and equal protection of the law.

5.

Pursuant to this automatic process—codified at Section 20-24.1 of the North

Carolina General Statutes, and effectuated by the DMV—over 436,000 drivers’ licenses

were revoked for non-payment of fines and costs as of Fall 2017. This high volume of

revocations is not surprising, given that nearly 15.4% of North Carolina residents (1.4

million) live in poverty North Carolina, according to the U.S. Census Bureau. The State

has some of the highest rates of poverty in the nation, with 6.7% of the population living

below half of the poverty line. For those who can afford to pay, fines and court costs are a

mere inconvenience. But for those who cannot afford to pay, fines or costs mean the loss

of their driver’s licenses, which frequently has much more serious economic consequences.

This is especially true in a state like North Carolina where a vast majority of counties are

rural and lack accessible public transportation.

6.

Plaintiffs in this lawsuit are low-income North Carolinians who face

irreparable, ongoing harm, in violation of due process and equal protection, because: (a)

their driver’s licenses will be revoked under North Carolina’s license revocation scheme,

N.C.G.S. § 20-24.1, which mandates the automatic revocation of licenses of those who do

not pay their fines and costs, and under the DMV’s enforcement practice, or (b) their

3 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 3 of 35

licenses have already been revoked under N.C.G.S. § 20-24.1 and the DMV’s enforcement

practice for non-payment of fines and costs.

7.

Plaintiff Mr. Johnson is a victim of North Carolina’s unconstitutional license

revocation scheme. He was ordered to pay $228; is unable to do so because he has been

unemployed for an extended period of time; and as a result, the DMV has entered an order

revoking his license, which will become indefinitely effective on or around July 24, 2018.

Defendant has not inquired into Mr. Johnson’s ability to pay, given him an opportunity to

be heard before he faces revocation of his driver’s license, or sent him adequate notice of

how he can prevent the revocation if he cannot pay.

8.

Plaintiff Ms. Sharee Smoot is also victim of North Carolina’s

unconstitutional license revocation scheme. Ms. Smoot was also convicted of traffic

offenses and ordered to pay fines and costs, but could not afford to pay these tickets. The

DMV revoked Ms. Smoot’s driver’s license because she was unable to afford the fines and

costs. Defendant made no inquiry into her ability to pay or whether her nonpayment was

willful. The only notice Ms. Smoot received was that she had to pay her citation in full.

She was not given notice of any other options to avoid revocation if she could not afford

to pay.

9.

Plaintiffs Mr. Johnson and Ms. Smoot are not alone. North Carolina punishes

hundreds of thousands of low-income people by revoking their drivers’ licenses simply

because of their economic status. Accordingly, Plaintiffs bring these claims on behalf of

themselves and all others similarly situated to challenge the unconstitutional license

4 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 4 of 35

revocation scheme established by Section 20-24.1 as well as the DMV’s enforcement of

that scheme.

10.

Plaintiffs bring this action under 42 U.S.C. § 1983 to vindicate their rights to

due process and equal protection of the law under the Fourteenth Amendment to the U.S.

Constitution. Plaintiffs seek: (1) a declaration that both Section 20-24.1 and the DMV’s

enforcement of the statute are unconstitutional; (2) an injunction enjoining the DMV from

revoking any driver’s license for non-payment under Section 20-24.1; and (3) an injunction

mandating the DMV to lift license revocations previously entered, and to restore the

licenses of individuals that were revoked, for non-payment under Section 20-24.1.

II. JURISDICTION AND VENUE

11.

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331

(federal question jurisdiction).

12.

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part

of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.

III. PARTIES

A. Plaintiffs

13.

Plaintiff Seti Johnson is a resident of Cabarrus County.

14.

Plaintiff Sharee Smoot is a resident of Cabarrus County.

B. Defendant

15.

Defendant Torre Jessup is the Commissioner of the North Carolina Division

of Motor Vehicles, who administers the DMV. In this role, Defendant has exclusive

5 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 5 of 35

authority to revoke driver’s licenses. N.C.G.S. §§ 20-2(a); 20-39(a). He is sued in his

official capacity as a state actor for declaratory and injunctive relief only.

IV. STATEMENT OF FACTS

A. A Driver’s License is a Necessity to Pursue a Livelihood and Care for One’s Self and Family.

16.

As of Fall 2017, over 436,000 individuals had their licenses indefinitely

revoked by the DMV for failure to pay fines and costs assessed for motor vehicle offenses.

17.

The indefinite revocation of driver’s licenses for nonpayment of fines and

costs disproportionately affects low-income persons and communities of color.

18.

The indefinite revocation of the drivers’ licenses of low-income North

Carolinians, including Plaintiffs Mr. Johnson and Ms. Smoot, erects significant barriers to

the ability to pursue a livelihood and meet basic human needs. Eighty-six percent of

Americans describe a car as a “necessity of life,” which is higher than the percentage of

people who identified air conditioning, a cell phone, a computer, and other consumer items

to be a life necessity.1

19.

Approximately 91% of North Carolina residents travel to work by car and

only 1.1% travel to work by public transit.2

1 Paul Taylor and Wendy Wang et al., The Fading Glory of The Television and Telephone, Pew Research Center 1 (Aug. 10, 2010), https://goo.gl/5knWYW. 2 U.S. Dep’t of Transp., Bur. of Transp. Stats., NORTH CAROLINA: Transportation by the Numbers 2 (2016), https://goo.gl/eM6NWy.
6
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 6 of 35

20.

Reliable, accessible public transit remains scarce throughout the vast

majority of North Carolina, particularly in the State’s rural counties.3 Public transit

services in urban areas of the State also provide limited access to jobs.4

21.

As a result, the lack of public transportation options remains a significant and

ubiquitous barrier to obtaining and maintaining employment for many North Carolinians.5

22.

Several studies have noted that a driver’s license is a “very common

requirement” to obtain employment, including most jobs that “can actually lift people out

of poverty.”6

23.

Thus, North Carolina’s unconstitutional automatic license revocation scheme

makes it difficult for North Carolinians to find and keep employment, indefinitely pushing

low-income individuals into the criminal justice system and further into poverty.

3 Tazra Mitchell, Connecting Workers to Jobs Through Reliable and Accessible Public Transport, Policy & Progress, N.C. Justice Center (Nov. 2012), https://goo.gl/qOF0S (noting scarcity of public transit options); Chandra T. Taylor and J. David Farren et al., Beyond the Bypass: Addressing Rural North Carolina’s Most Important Transportation Needs, So. Envtl. Law Ctr. 1 (2012) (noting rural nature of the state), https://goo.gl/nUVHjG. 4 Mitchell, supra note 3.
5 Id. 6 See, e.g., Alana Semuels, No Driver’s License, No Job, The Atlantic, June 15, 2016, https://goo.gl/xQjyLj; see also Stephen Bingham et al., Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California 26–28 (2016), https://goo.gl/uLhFfL (finding license suspensions cause loss of employment because employers often screen out those without licenses and because drivers’ licenses are necessary for: transportation to and from work; to obtain full time, steady employment; and for job-training programs).
7
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 7 of 35

24.

Persons whose licenses are revoked face an unenviable choice: drive illegally

and risk further punishment, or stay home and forgo the ability to meet the daily needs of

themselves and their families. When faced with either losing their jobs or remaining

unemployed, or otherwise risking being pulled over for driving with a revoked license,

individuals often chose the latter—risking car impoundment, additional fines and costs,

additional periods of revocation, and even imprisonment for driving on a revoked license—

so they can maintain their livelihood and support their families.

B. The DMV Automatically Revokes Drivers’ Licenses For Non-Payment of Traffic Fines and Costs Pursuant to N.C.G.S. § 20-24.1.

25.

Revocation of drivers’ licenses is the exclusive province of the

Commissioner of the North Carolina Division of Motor Vehicles. N.C.G.S. §§ 20-2(a);

20-39(a).

26.

Courts in North Carolina are required to report to the DMV the name of any

person charged with a motor vehicle offense who fails to pay a fine, penalty, or costs within

40 days of the date specified in the court’s judgment. N.C.G.S. § 20-24.2(a)(2).

27.

Pursuant to Section 20-24.1(a),7 the DMV is required to revoke, and does

revoke, an individual’s driver’s license after it receives notice from a court that the person

7 The pertinent subsections of Section 20-24.1 read, in relevant part:
(a) The Division must revoke the driver’s license of a person upon receipt of notice from a court that the person was charged with a motor vehicle offense and he: . . .
8
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 8 of 35

(2) failed to pay a fine, penalty, or court costs ordered by the court. Revocation orders entered under the authority of this section are effective on the sixtieth day after the order is mailed or personally delivered to the person.
(b) A license revoked under this section remains revoked until the person whose license has been revoked: . . .
(2) demonstrates to the court that he is not the person charged with the offense; or
(3) pays the penalty, fine, or costs ordered by the court; or (4) demonstrates to the court that his failure to pay the penalty, fine, or
costs was not willful and that he is making a good faith effort to pay or that the penalty, fine, or costs should be remitted.
Upon receipt of notice from the court that the person has satisfied the conditions of this subsection applicable to his case, the Division must restore the person’s license as provided in subsection (c). . . .
(b1) A defendant must be afforded an opportunity for a trial or a hearing within a reasonable time of the defendant’s appearance. Upon motion of a defendant, the court must order that a hearing or a trial be heard within a reasonable time.
(c) If the person satisfies the conditions of subsection (b) that are applicable to his case before the effective date of the revocation order, the revocation order and any entries on his driving record relating to it shall be deleted and the person does not have to pay the restoration fee set by G.S. 20-7(i1). For all other revocation orders issued pursuant to this section, G.S. 50-13.12 or G.S. 110-142.2, the person must pay the restoration fee and satisfy any other applicable requirements of this Article before the person may be relicensed. . . . .
N.C. Gen. Stat. Ann. § 20-24.1.
9
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 9 of 35

has not paid fines and costs. This revocation is automatic and occurs without any regard

to whether the person lacks the ability to pay. Upon receipt of this notice, the DMV enters

a revocation order. Id. § 20-24.1(a)(2). By statute, the revocation order becomes effective

60 days after it is mailed or personally delivered to the motorist. Id. § 20-24.1(a).

a. Revocation Notice

28.

The DMV sends the revocation order to a driver upon receipt of a notice from

the court that the driver failed to pay fines and costs, as described in Paragraph 27. The

DMV labels this revocation order an “Official Notice” (hereinafter, “Revocation Notice”).

A copy of a standard Revocation Notice is as follows:

10 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 10 of 35

N.C. DMV, Revocation Notice to Plaintiff Sharee Smoot (Jan. 10, 2018).

29.

The Revocation Notice states that the driver’s “driving privilege is scheduled

for an indefinite suspension in accordance with general statute 20-24.1 for failure to pay

[a] fine”; provides an “effective date” that is approximately 60 days from the date the notice

is mailed; and identifies the violation date, citation number, court, and court phone number

related to the unpaid fine. Id.

30.

The only guidance the Revocation Notice offers regarding how to prevent

the revocation is that the driver must “comply” with the citation, as follows:

PLEASE COMPLY WITH THIS CITATION PRIOR TO THE EFFECTIVE DATE IN ORDER TO STOP THIS SUSPENSION.

Id.

31.

Once a license is indefinitely revoked for non-payment, the DMV only lifts

the revocation once the person is in “compliance” with the underlying citation. The

Revocation Notice states:

REINSTATEMENT PROCEDURES: UPON COMPLIANCE WITH THIS CITATION, YOU MAY VISIT YOUR LOCAL DRIVER LICENSE OFFICE. AT SUCH TIME PROPER IDENTIFICATION AND PROOF OF AGE WILL BE REQUIRED.

Id.

32.

The Revocation Notice does not provide, and the DMV does not provide, any

information about how to obtain a hearing on the pending revocation.

11 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 11 of 35

33.

Neither the Revocation Notice nor the DMV provides any information

indicating that there are any options to permit persons to keep their licenses if they cannot

pay in full.

34.

Neither the Revocation Notice nor the DMV provides any information to

suggest that if a hearing is held, the person’s ability to pay will be a critical issue at the

hearing.

b. Lack of any pre-revocation determination of ability to pay under Section 20.24.1

32.

Neither Section 20-24.1 nor the DMV requires any inquiry into ability to pay

or a determination that motorists willfully failed to pay their fines and costs before revoking

a driver’s license for non-payment.

33.

Instead, if drivers cannot pay in full, Section 20-24.1 places the burden on

motorists to request a hearing to restore their licenses by showing a court that non-payment

was not willful and that they are making a good-faith effort to pay or the debt should be

remitted. Id. § 20-24.1(b)(4). Yet, as set forth above, drivers are not informed about how

to access this relief, and are told instead by the DMV that they must “comply” with the

citation to avoid revocation, which, under the circumstances of the Revocation Notice,

implies that the driver must pay the fines and costs in full. As a result, drivers rarely, if

ever, invoke this process, leading to the revocation of tens, and possibly, hundreds of

thousands of North Carolinians’ drivers’ licenses each year, without any hearing or

determination that a single one of these motorists was able to pay and willfully failed to do

so.

12

Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 12 of 35

34.

If the motorist fails to satisfy Section 20-24.1(b), the license remains

indefinitely revoked. See id. § 20-24.1(b), (c).

35.

Neither Section 20-24.1 nor the DMV, as a matter of standard practice,

requires a hearing before the driver’s license revocation becomes effective to determine

whether non-payment was willful. See id. § 20-24.1.

36.

Accordingly, pursuant to Section 20-24.1, the DMV routinely revokes

drivers’ licenses for non-payment without inquiring into the individual’s ability to pay and

ensuring that any nonpayment is willful.

37.

Finally, pursuant to Section 20-24.1, the DMV routinely revokes drivers’

licenses for non-payment without providing motorists adequate notice of the revocation

process, including that ability-to-pay is a material fact to whether a license should be

indefinitely revoked, and without providing them an opportunity to be heard on ability to

pay and whether the non-payment was willful.

C. Plaintiff Mr. Johnson Faces the Unconstitutional Future Revocation of His Driver’s License Pursuant to Section 20-24.1 Due to an Inability to Pay Fines and Costs.

38.

Plaintiff Mr. Seti Johnson lives in Cabarrus County with his mother. Mr.

Johnson is married and the father of three children. Mr. Johnson does not have stable

income, and the limited income he does have is put towards his family’s needs.

39.

Mr. Johnson has limited economic resources. He has struggled to maintain

work, in part, because his license was revoked at least twice before because he was unable

13 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 13 of 35

to pay his traffic tickets, and because he needed to attend multiple court hearings regarding

the unpaid tickets.

40.

Mr. Johnson needs his driver’s license. He relies on his driver’s license to

search for work, and go to work when he is employed, and to travel to the grocery store,

take his children to school and daycare, and to go to the doctor’s office.

41.

Mr. Johnson is familiar with North Carolina’s procedures for revoking

driver’s licenses for non-payment of fines and costs, and the hurdles erected for restoring

licenses. Mr. Johnson previously has had this license revoked because he could not pay,

and despite his limited income, surmounted the State’s significant hurdles to restoration by

paying to have his license reinstated.

42.

During the summer of 2017, Mr. Johnson was pulled over by the police while

driving. The police officer took Mr. Johnson’s license and told him he was doing so

because he did not pay old traffic tickets. The police officer also issued Mr. Johnson a

ticket for “DWLR not impaired” (i.e., driving while license revoked). When Mr. Johnson

contacted the Cabarrus County District Court (the “District Court”) to determine how to

get his license reinstated, he was told the only option was to pay the unpaid fines and costs

and any late fees in full.

43.

To get his license back, Mr. Johnson used his rent money to pay more than

$700 in fines and costs. Mr. Johnson’s driver’s license was later reinstated by the DMV.

In the meantime, Mr. Johnson fell behind on rent payments and eventually had no choice

14 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 14 of 35

but to move in with his mother for housing. During this time, Mr. Johnson also had to

sacrifice buying necessities for himself and his children.

44.

Before Mr. Johnson paid the more than $700 and regained his license, he was

issued another ticket for “DWLR not impaired” in September 2017.

45.

In April 2018, Mr. Johnson appeared in the District Court for the September

DWLR. The prosecutor reduced the charge to “failure to notify DMV of address change,”

to which Mr. Johnson pled guilty. The District Judge sentenced Mr. Johnson to pay a $100

fine and $208 in court costs. The judge did not give Mr. Johnson options to resolve the

fine and costs other than paying the total $308 to the District Court. Nor did the judge

conduct a hearing to ask Mr. Johnson about his ability to pay the fines and costs.

46.

At that hearing, the prosecutor told Mr. Johnson that he would have to pay

$100 that day or his license would be revoked. Mr. Johnson was unemployed at the time

and had only $300 to his name, but he pulled together the $100 to pay that day to avoid

losing his license.

47.

The District Court gave Mr. Johnson a Bill of Costs that states “total monies

owed” are due “within 40 days” and that his license will be suspended if he does not pay

in full. He was also charged an additional $20, referred to as an “installment plan set up

fee,” because he was not able to pay in full that day.

48.

Mr. Johnson’s balance of $228 was due on May 22, 2018.

49.

Mr. Johnson has not paid the fine and costs, and cannot afford to pay at this

time.

15 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 15 of 35

50.

Although Mr. Johnson just secured a new job through a temp agency, he will

need to use his initial paychecks to pay unpaid bills, such as an overdue mechanic bill, a

phone bill, and approximately $2,000 in back rent. Mr. Johnson’s children also have

immediate needs like diapers, clothes, and shoes.

51.

The DMV has entered an order revoking his license, and the revocation will

become effective on or around July 24, 2018, unless he can pay his fines and costs in full,

which he cannot afford to do.

52.

Without a driver’s license, it will be difficult for Mr. Johnson to get to work,

get food for his family, take his children to school and daycare, or take his family to

doctor’s appointments. He will likely face the impossible choice of driving illegally to

maintain his new job and provide for his family, or lose the job and face even greater

burdens in providing for his family.

D. Ms. Smoot Faces Ongoing Irreparable Harm Arising from the Unconstitutional Revocation of Her Driver’s License Due to an Inability to Pay Fines and Costs.

53.

Plaintiff Sharee Smoot lives in Cabarrus County, North Carolina, with her

nine-year-old daughter and grandmother. Ms. Smoot’s driver’s license is currently revoked

because she was unable to pay fines, penalties, and court costs for several traffic tickets.

54.

Ms. Smoot currently works at a call-center forty-five minutes away from her

home. She has no family members, friends, or colleagues who can pick her up from, and

drop her off at, work. Nor is there accessible public transportation that Ms. Smoot can use

to get to work. Further, Ms. Smoot cannot afford to pay anyone to drive her to or from

16 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 16 of 35

work. As a result, she is forced to make the difficult choice of losing her job and not being

able to care for herself and her family or driving on a revoked driver’s license and risking

additional traffic tickets.

55.

In 2016, Ms. Smoot appeared on a ticket for “DWLR NOT IMPAIRED

REV” (i.e., driving while license revoked) in the Cabarrus County District Court (the

“District Court”) and was convicted of the lesser charge of “failure to notify DMV of

address change.”

56.

The District Court sentenced Ms. Smoot to pay approximately $308, which

she could not afford due to her limited economic resources. The District Court did not give

her any option to resolve the fine and court costs besides paying in full and did not conduct

a hearing to inquire into or decide her ability to pay the fine and court costs.

57.

Ms. Smoot did not pay the fine and court costs within the 40 days ordered by

the District Court because she did not have the money and as a result, was assessed a $50

late fee.

58.

Ms. Smoot later received a Revocation Notice from the DMV that her license

would be effectively revoked if she did not pay by the designated date. The Notice,

however, did not tell her how to avoid the revocation or to reinstate her driver’s license

after the revocation, except to “comply” with the citation by the designated date.

59.

Because of her strained financial circumstances, Ms. Smoot did not pay the

fine and costs by the designated date to attempt to stop the revocation of her license.

17 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 17 of 35

60.

Ms. Smoot’s employment at the time only earned her $9 per hour, and she

was receiving Supplemental Nutrition Assistance Program (“SNAP”) benefits. She also

was solely responsible for paying the rent and utilities for the residence she shared with her

mother and daughter and her car note and car insurance. She also bought groceries and

other necessities for herself and her daughter and mother. Between her SNAP benefits and

income, she had barely enough money to meet her and her family’s needs.

61.

Shortly after she started receiving overtime at work, Ms. Smoot’s SNAP

benefits were cancelled, forcing her to choose between her family’s needs, like paying the

light bill or buying groceries.

62.

Ms. Smoot also had to stop attending school at the University of North

Carolina-Charlotte because she could not afford the cost of school and her family’s bills

on her limited income.

63.

Because of her limited financial means, Ms. Smoot could not pay the fine,

penalty, and court costs on her 2016 ticket, and the DMV revoked her driver’s license in

2016.

64.

In 2017, Ms. Smoot was convicted in the District Court of “DWLR NOT

IMPAIRED REV” and ordered to pay $235, which she could not afford to pay that day.

65.

The District Court once again did not provide her any options to resolve the

fine and court costs other than paying the $235 in full and did not conduct a hearing to

inquire into or decide her ability to pay the fine and court costs.

18 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 18 of 35

66.

Ms. Smoot again could not pay the fine and costs within 40 days because she

did not have the money and a result, was assessed a $50 late fee.

67.

Ms. Smoot received another Revocation Notice from the DMV in 2018,

creating an additional basis for which her license is revoked. This second Notice also failed

to inform her about how to avoid revocation, or how to reinstate her driver’s license, except

to “comply” with the citation by the designated date on the Notice.

68.

Around this time, Ms. Smoot fell behind on her car payments and rent, and

her car was repossessed. Because she did not have transportation to work, she lost her job,

and she and her daughter had to move in with her grandmother.

69.

Due to these circumstances, she also did not have the money to pay the fine,

penalty, and court costs to stop the revocation by the date on this second Revocation Notice,

and the DMV once again revoked her driver’s license in 2018 for failure to pay.

70.

Ms. Smoot needs a driver’s license to travel to work, doctor’s appointments,

and her church, and to get food for her daughter. Without a valid driver’s license, she has

had to make the difficult choice of staying home, losing her job, and not being able to care

for herself, her daughter, and her grandmother, whose bills she also helps pay, or drive

illegally and risk further punishment.

71.

Ms. Smoot, however, still does not have the money to pay either her 2016

ticket or 2017 ticket to reinstate her license.

19 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 19 of 35

72.

Ms. Smoot currently makes $12 per hour at the call center, but she often

works fewer than 40 hours per week because she and other employees are often required

to leave early if incoming call volume is low.

73.

Ms. Smoot worries that without use of a valid driver’s license, she will not

be able to continue working and caring for her family, or will continue getting more tickets

for driving without a valid driver’s license, because she needs to drive to support and care

for herself and her family.

V. CLASS ALLEGATIONS

74.

Plaintiffs seek to certify two separate classes.

75.

Plaintiff Mr. Johnson seeks class certification pursuant to Fed. R. Civ. P.

23(a) and (b)(2) related to Claims One, Two, and Three, for which prospective injunctive

and declaratory relief is sought. This Class is defined as: “All individuals whose drivers’

licenses will be revoked in the future by the DMV due to their failure to pay fines, penalties,

or court costs assessed by a court for a traffic offense.” This Class is referred to as the

“Future Revocation Class.”

76.

Plaintiff Ms. Smoot seeks class certification pursuant to Fed. R. Civ. P. 23(a)

and (b)(2) related to Claims One, Two, and Three, for which prospective injunctive and

declaratory relief is sought. This Class is defined as: “All individuals whose drivers’

licenses have been revoked by the DMV due to their failure to pay fines, penalties, or court

costs assessed by a court for a traffic offense.” This Class is referred to as the “Revoked

Class.”

20 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 20 of 35

77.

A class action is the only practicable means by which Plaintiffs and unknown

members of the Future Revocation Class and Revoked Class can challenge North

Carolina’s unconstitutional driver’s license revocation law, Section 20-24.1, and the

DMV’s practice of automatically and indefinitely revoking licenses for non-payment.

78.

As set forth below, this action satisfies the numerosity, commonality,

typicality, and adequacy requirements of Rule 23(a). This action also meets Rule 23(b)(2)

Federal Rules of Civil Procedure.

79.

Numerosity: The exact sizes of the Future Revocation Class and the Revoked

Class are unknown by Plaintiffs, but each Class plainly meets the numerosity requirement,

thereby making joinder impracticable. Based on the DMV’s response to an open records

request, the Revoked Class had approximately 436,000 members in the fall of 2017—all

individuals punished with an automatic and indefinite driver’s license revocation for

unpaid fines and costs.8 That number has remained in the hundreds of thousands and has

likely increased since Fall 2017, due to the DMV’s ongoing practice of automatically and

indefinitely revoking the drivers’ licenses of people unable to pay their fines and costs.

80.

The Future Revocation Class consists of hundreds of thousands of people

who cannot or will not be able to afford to pay fines and costs and therefore face revocation

of their licenses. The Future Revocation Class is forward-looking with the potential for

new members to join the Class on an ongoing basis. The DMV will continue to revoke

8 See Exhibit I to Declaration of Samuel Brooke, filed herewith. 21
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 21 of 35

licenses for non-payment absent the requested injunction, causing this class size to grow

over time.

81.

Finally, members of the proposed Classes such as Plaintiffs Mr. Johnson and

Ms. Smoot are spread out across the state, and they are typically low-income individuals

who lack financial resources to bring an independent action or to be joined in this action.

Putative members are facing or have experienced the revocation of their licenses precisely

because of their inability to pay; thus, it is reasonable to assume they would also be unable

to afford counsel to bring their own separate action against Defendant.

82.

Commonality: All persons comprising the proposed Classes are equally

subject to the provisions of Section 20-24.1, which mandate the DMV to revoke a

motorist’s driver’s license for non-payment without any determination a motorist willfully

failed to pay and without providing adequate notice of, or an opportunity to be heard on,

the effects of revocation before the revocation. All members of the proposed Classes also

are equally subject to the Division’s revocation of driver’s licenses for non-payment.

83.

Accordingly, Plaintiffs raise claims based on questions of law and fact that

are common to, and typical of, the putative class members of both Classes they seek to

represent, Common questions of fact include:

a. Whether Section 20-24.1 mandates the DMV to revoke, and whether the

DMV has a practice of revoking, a license for non-payment without requiring

a pre-deprivation hearing;

22 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 22 of 35

b. Whether Section 20-24.1 mandates the DMV to revoke, and whether the DMV has a practice of revoking, a license for non-payment without requiring an inquiry into a motorist’s ability to pay and determining the motorist’s nonpayment was willful; and
c. Whether the revocation notice provided by the DMV to drivers whose licenses will be revoked for non-payment fails to inform drivers that (1) they may have a hearing before the revocation becomes effective; (2) a critical issue at that hearing will be their ability to pay fines and costs that they are alleged to have failed to pay; and (3) additional options exist under Section 20-24.1 to avoid revocation for those who cannot pay in full.
Common questions of law include: d. Whether Section 20-24.1 and the DMV’s enforcement of the statute violate the Fourteenth Amendment by failing to inquire into a motorist’s ability to pay and whether the motorist’s non-payment was willful before revoking a license for non-payment; e. Whether Section 20-24.1 and the DMV’s enforcement of the statute violate the Fourteenth Amendment Procedural Due Process Clause by revoking licenses before conducting a pre-deprivation hearing; f. Whether Section 20-24.1 and the DMV’s enforcement of the statute violate the Fourteenth Amendment Procedural Due Process Clause by failing to provide adequate advance notice and opportunity to be heard; and
23
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 23 of 35

g. Whether injunctive and declaratory relief is appropriate and if so, what the

terms of such relief should be.

84.

The relief sought for each proposed Class is common to all members of that

respective Class. Plaintiffs seek relief declaring Section 20-24.1 and the DMV’s

enforcement of the statute are unconstitutional for both Classes. They additionally seek:

(a) on behalf of the Future Revocation Class, an order enjoining the DMV from revoking

licenses for non-payment pursuant to Section 20-24.1, and (b) on behalf of the Revoked

Class, an order mandating the DMV to lift license revocations entered under Section 20-

24.1 and to restore the licenses of those whose licenses are presently revoked for non-

payment under Section 20-24.1.

85.

Typicality: The claims of Plaintiff Mr. Johnson are typical of the claims of

the proposed Future Revocation Class as a whole. Mr. Johnson and the putative Future

Revocation Class members will suffer the same direct, irreparable injury of a loss of their

driver’s license unless Section 20-24.1 is declared unconstitutional and DMV is enjoined

from revoking licenses pursuant to that statute, absent meaningful notice, a pre-revocation

opportunity to be heard, and a determination of willful nonpayment before the revocation.

86.

Because Plaintiff Mr. Johnson and the proposed Future Revocation Class

challenge the same unconstitutional statute, the DMV will likely assert similar defenses

against Mr. Johnson and proposed Future Revocation Class members. Moreover, the

answer to whether the statute is unconstitutional will determine the success of the claims

of named Mr. Johnson and every other proposed Future Revocation Class member: if Mr.

24 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 24 of 35

Johnson succeeds in the claim that the statute violates his constitutional rights, that ruling

will likewise benefit every other member of the proposed Class.

87.

Likewise, the claims of Plaintiff Ms. Smoot are typical of the claims of the

Proposed Revoked Class as a whole. Plaintiff Ms. Smoot and the putative Revoked Class

members have suffered the same direct, irreparable injury of loss of their driver’s license,

and this injury will continue unless Section 20-24.1 and the DMV’s corresponding practice

to revoke for non-payment are declared unconstitutional and are enjoined.

88.

Because Plaintiff Ms. Smoot and the proposed Class challenge the same

unconstitutional statute and DMV practice of enforcing the statute, the DMV will likely

assert similar defenses against Ms. Smoot and proposed Revoked Class members.

Moreover, the answer to whether the statute and the DMV’s enforcement of the statute are

unconstitutional will determine the success of the claims of Ms. Smoot and every other

proposed Revoked Class member: if Ms. Smoot succeeds in the claim that the statute and

DMV violate her constitutional rights, that ruling will likewise benefit every other member

of the proposed Revoked Class.

89.

Adequacy: Plaintiffs Mr. Johnson and Ms. Smoot will fairly and adequately

represent the interests of the proposed Classes they seek to represent.

90.

Plaintiffs Mr. Johnson and Ms. Smoot have no interests separate from, or in

conflict with, those of the proposed Classes they seek to represent and seek no relief other

than the declaratory and injunctive relief sought on behalf of the entire proposed Classes.

25 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 25 of 35

91.

Rule 23(b)(2): Class action status under Rule 23(b)(2) is appropriate because

the DMV has acted or failed and/or refused to act on grounds that generally apply to the

proposed Classes, such that preliminary and final injunctive and declaratory relief is

appropriate and necessary with respect to each member of each Classes. Specifically,

pursuant to Section 20-24.1, the DMV automatically and systematically revokes licenses

in an unconstitutional manner—without any determination of willfulness or ability to pay,

without a pre-deprivation hearing, and without adequate notice or opportunity to be

heard—that is generally applicable to both of the proposed Classes.

92.

Accordingly, (a) a declaration that Section 20-24.1, along with the DMV’s

practice of enforcing the statute, violate the Fourteenth Amendment; (b) an injunction that

enjoins enforcement of Section 20-24.1 by the DMV; (c) an injunction that prohibits the

DMV from revoking the licenses of individuals for non-payment under Section 20-24.1;

and (d) an injunction that mandates the lifting of license revocations and the restoration of

unconstitutionally revoked licenses for non-payment under Section 20-24.1, would benefit

every member of each of the proposed Classes.

93.

Rule 23(g): Plaintiffs respectfully request that the undersigned be appointed

as Class Counsel. The undersigned attorneys from the Southern Poverty Law Center, the

Southern Coalition for Social Justice, the American Civil Liberties Union Foundation, and

the American Civil Liberties Union of North Carolina have experience in class-action

litigation involving complex civil rights matters in federal court and knowledge of the

26 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 26 of 35

relevant constitutional and statutory law and Defendant’s practice of revocation. Counsel

also have the resources, expertise, and experience to prosecute this action.

VI. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF Fourteenth Amendment of the U.S. Constitution (Equal Protection and Due Process Bearden Violation)

94.

Plaintiffs re-allege and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth here.

95.

Plaintiff Mr. Johnson asserts this claim on behalf of himself and the proposed

Future Revocation Class he seeks to represent.

96.

Plaintiff Ms. Smoot also brings this claim on behalf of herself and the

behalves of the proposed Revoked Class she seeks to represent.

97.

The Fourteenth Amendment of the U.S. Constitution prohibits punishing

individuals for non-payment without first determining that they had the ability to pay and

willfully refused to make a monetary payment. See Bearden v. Georgia, 461 U.S. 660

(1983).

98.

Section 20-24.1 of the North Carolina General Statutes requires the DMV to

indefinitely revoke motorists’ licenses for non-payment of their fines, penalties, or court

costs for a motor vehicle offense, without any determination that they willfully refused to

pay.

27 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 27 of 35

99.

Pursuant to Section 20-24.1, Defendant also indefinitely revokes motorists’

licenses for non-payment of their fines and costs for a motor vehicle offense, without any

determination that they willfully refused to pay.

100.

Plaintiffs have a substantial interest in their drivers’ licenses.

101.

Revoking the driver’s license of a motorist who does not have the means to

pay, through no fault of her own, does not reasonably further any legitimate government

interest.

102.

There are alternate means to effectuate North Carolina’s interest in collecting

unpaid fines, penalties, and court costs, including, inter alia, extending the time to make

payments, reducing the amount owed, or ordering a motorist to complete community

service or coursework.

103.

Section 20-24.1 violates Plaintiffs’ rights under the Fourteenth Amendment

of the U.S. Constitution by mandating the revocation of motorists’ driver’s license for non-

payment, without first determining they willfully refused to pay.

104.

The DMV’s revocations of licenses under Section 20-24.1 also violates

Plaintiffs’ rights under the Fourteenth Amendment of the U.S. Constitution by mandating

the revocation of motorists’ driver’s license for non-payment, without first determining

that they willfully refused to pay.

28 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 28 of 35

SECOND CLAIM FOR RELIEF Fourteenth Amendment of the U.S. Constitution (Procedural Due Process — Failure to Provide a Pre-Deprivation Hearing)

105.

Plaintiffs re-allege and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth here.

106.

Plaintiff Mr. Johnson asserts this claim on behalf of himself and the proposed

Future Revocation Class he seeks to represent.

107.

Plaintiff Ms. Smoot also brings this claim on behalf of herself and the

proposed Revoked Class she seeks to represent.

108.

The Fourteenth Amendment of the U.S. Constitution prohibits the State of

North Carolina from depriving any person of life, liberty, or property without due process

of law.

109.

The cornerstone of due process when a property or liberty interest is at stake

is notice and a meaningful opportunity to be heard in a meaningful time and in a meaningful

manner.

110.

Neither the North Carolina General Code, including Sections 20-24.1 and

20-24.2, nor the DMV mandates a deprivation hearing before indefinitely revoking a

license for non-payment of fines and costs.

111.

Neither the North Carolina General Code, including Sections 20-24.1 and

20-24.2, nor the DMV mandates an inquiry into willfulness before indefinitely revoking a

license for non-payment of fines and costs.

29 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 29 of 35

112.

Sections 20-24.1 and 20-24.2 of the North Carolina General Statutes create

a substantive standard for revocation of driver’s licenses that involves the following

factors: whether a driver (1) failed to pay fines and fees 40 days after due, and (2) did so

willfully or in bad faith. Consequently, whether an individual has willfully failed to pay

fines and court costs is a fact that is material to whether a license should be indefinitely

revoked.

113.

North Carolina motorists have a substantial interest in their driver’s licenses.

114.

The process established under Sections 20-24.1 and 20-24.2 and by the DMV

creates a substantial risk of erroneously revoking the licenses of those who did not willfully

fail to pay or have made good faith efforts to pay, even though the Legislature determined

that these facts are material to the decision to indefinitely revoke a license. Yet the process

established by these statutory provisions and implemented by the DMV does not mandate

a pre-deprivation hearing and determination of willfulness. Thus, it is impossible for the

DMV to accurately identify the individuals whose licenses should be revoked for willful

non-payment and those whose licenses should not be revoked because they were unable to

pay.

115.

A pre-revocation hearing will reduce the risks of erroneous deprivation by

permitting an inquiry into willfulness and good faith.

116.

A pre-revocation hearing to determine willful non-payment would not

impose substantial fiscal and administrative burdens on the State.

30 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 30 of 35

117.

To the extent a pre-revocation hearing would impose some fiscal or

administrative burdens on the State, these burdens are outweighed by the driver’s

substantial interest in maintaining a license and in the need to ensure erroneous revocations

do not occur.

118.

There exist no extraordinary circumstances, important governmental or

general public interests—including public safety—that justifies the absence of a hearing

and willfulness determination before revoking licenses of drivers for non-payment. Indeed,

there is no connection between failure to pay and a driver’s ability to safely operate a

vehicle.

119.

Rather, the State’s primary interest at stake here is the collection of fines and

costs. The State’s financial interest in the collection of fines and costs is not advanced by

revoking the licenses of those who cannot afford to pay and thus, is not advanced without

a pre-deprivation hearing.

120.

The revocation of Plaintiffs’ licenses for non-payment without a pre-

revocation hearing to evaluate ability to pay and to determine willfulness violates the

Procedural Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.

31 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 31 of 35

THIRD CLAIM FOR RELIEF Fourteenth Amendment of the U.S. Constitution (Procedural Due Process —Failure to Provide Adequate Notice)

121.

Plaintiffs re-allege and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth here.

122.

Plaintiff Mr. Johnson asserts this claim on behalf of himself and the proposed

Future Revocation Class he seeks to represent.

123.

Plaintiff Ms. Smoot also brings this claim on behalf of herself and the

behalves of the proposed Revoked Class she seeks to represent.

124.

The Fourteenth Amendment of the U.S. Constitution prohibits the State of

North Carolina from depriving any person of life, liberty, or property without due process

of law.

125.

The cornerstone of due process when a property interest is at stake is notice

and a meaningful opportunity to be heard in a meaningful time and in a meaningful manner.

126.

Notice must be reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action; to accurately describe legal rights and

options available to the parties; and to afford them an opportunity to present their

objections.

127.

In circumstances where a punishment may be imposed, notice must

adequately inform the party as to what the critical issue of the hearing will be.

128.

The DMV fails to provide adequate notice to drivers either before or after

licenses are revoked for failure to pay fines and costs, in violation of the Due Process

32 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 32 of 35

Clause. The notice provided (1) misleadingly informs motorists that the only way they can

prevent or end a license revocation is by paying the fines and costs owed in full; (2) fails

to provide any notice about a right to a hearing; (3) fails to identify the remedies available

under N.C. Gen. Stat. Ann. Section 20-24.1(b)(4); and (4) fails to inform the driver that

ability to pay will be a critical issue at any hearing.

129.

The license revocations of Plaintiffs and members of both proposed Classes

for non-payment, without adequate notice, violates the Procedural Due Process Clause of

the Fourteenth Amendment to the U.S. Constitution.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request the following relief:

a. Assume jurisdiction over this action;

b. Certify a class, referred to above as the Future Revocation Class, under Rules

23(a) and (b)(2) of the Federal Rules of Civil Procedure, represented by Plaintiff Mr.

Johnson, related to the First, Second, and Third Claims for Relief;

c. Certify a class, referred to above as the Revoked Class, under Rules 23(a)

and (b)(2) of the Federal Rules of Civil Procedure, represented by Plaintiff Ms. Smoot,

related to First, Second, and Third Claims for Relief;

d. Issue a declaration that Section 20-24.1 of the North Carolina General

Statutes and the DMV’s revocation of licenses for nonpayment thereunder:

i. violate the equal protection and due process guarantees of the Fourteenth

Amendment of the U.S. Constitution, as articulated in Bearden v.

33 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 33 of 35

Georgia, by revoking a motorist’s driver’s license for non-payment without an inquiry into ability to pay and a finding that the motorist willfully failed to pay; ii. violate the Procedural Due Process Clause of the Fourteenth Amendment of the U.S. Constitution by failing to affirmatively provide motorists a pre-deprivation opportunity to be heard on their inability to pay and to affirmatively inquire into willfulness and good faith before the revocation; and iii. violate the Procedural Due Process Clause of the Fourteenth Amendment of the U.S. Constitution by failing to provide adequate notice of the opportunity to raise inability to pay or to otherwise challenge the revocation. e. Enter an injunction to: i. enjoin Section 20-24.1(a)(2) and (b)(3)-(4); ii. prohibit the DMV from revoking drivers’ licenses for non-payment under Section 20-24.1(a)(2); and iii. mandate the DMV to lift current license revocations entered pursuant to Section 20-24.1(a)(2), to reinstate licenses without charging a reinstatement fee if there is no other reason to continue the revocation, and to provide notice to the license-holders of this change. f. Award prevailing party costs, including attorney fees; and
34
Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 34 of 35

g. Grant such other relief as the Court deems just and appropriate.

Dated May 30, 2018.

Respectfully submitted,

/s/ Kristi L. Graunke Kristi L. Graunke On behalf of Counsel for Plaintiffs

Christopher A. Brook (NC Bar No. 33838) Cristina Becker (NC Bar No. 46973) Sneha Shah* AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION P.O. Box 28004 Raleigh, North Carolina 27611 T: 919-834-3466 E: cbrook@acluofnc.org E: cbecker@acluofnc.org E: sshah@acluofnc.org
Nusrat J. Choudhury* R. Orion Danjuma* AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, New York 10004 T: 212-519-7876 T: 212-549-2563 E: nchoudhury@aclu.org E: odanjuma@aclu.org
*Appearing by Special Appearance pursuant to L.R. 83.1(d)

Kristi L. Graunke (NC Bar No. 51216) Emily C.R. Early* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, Georgia 30030 T: 404-221-4036 E: kristi.graunke@splcenter.org E: emily.early@splcenter.org
Samuel Brooke* Danielle Davis* SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 T: 334-956-8200 F: 334-956-8481 E: samuel.brooke@splcenter.org E: danielle.davis@splcenter.org
Laura Holland (NC Bar No. 50781) SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. NC Hwy 54, Suite 101 Durham, North Carolina 27707 T: 919-323-3380 x.161 F: 919-323-3942 E: lauraholland@southerncoalition.org
Counsel for Plaintiffs

35 Case 1:18-cv-00467 Document 1 Filed 05/30/18 Page 35 of 35

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SETI JOHNSON and MARIE BONHOMME-DICKS, on behalf of themselves and those similarly situated, and SHAREE SMOOT and NICHELLE YARBOROUGH, on behalf of themselves and those similarily situated,

Plaintiffs,

Case No. 1:18-cv-00467

v.

(CLASS ACTION)

TORRE JESSUP, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles,

Defendant.

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT

1.

Plaintiff Seti Johnson, a 27-year-old father of three young children, works

sporadic jobs and supports his family on limited financial means. Plaintiff Marie

Bonhomme-Dicks, a single mother and the sole caretaker and financial provider for her

son, often sells her plasma because she cannot make ends meets with her part-time job.

Because they cannot pay their traffic tickets, both Mr. Johnson and Ms. Bonhomme-

Dicks are now facing an imminent revocation of their driver’s licenses pursuant to

Section 20-24.1 of the North Carolina General Statutes. Already surviving amidst

1
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 1 of 41

extreme hardship, without a driver’s license they will face insurmountable difficulties in

providing for their families and finding or maintaining gainful employment.

2.

Plaintiff Nichelle Yarborough is a young mother who is singlehandedly

raising her four children, including a nine-month-old premature baby with serious

medical needs, while struggling with debt and bankruptcy. Plaintiff Sharee Smoot

provides for her mother and daughter on a low-paying part-time job that is an hour away

from her home and not accessible by public transportation. Ms. Yarborough and Ms.

Smoot have had their driver’s licenses revoked pursuant to Section 20-24.1 because they

cannot afford to pay their court fines, penalties, and costs from a traffic ticket. Their

license revocations, based exclusively on their lack of financial resources, regularly force

them to make impossible choices. For example, Ms. Yarborough must choose between

not taking her baby to critical medical appointments or driving and risking further

criminalization for not having a valid driver’s license.

3.

The plights of Mr. Johnson, Ms. Bonhomme-Dicks, Ms. Yarborough, and

Ms. Smoot are not anomalies. The DMV has indefinitely revoked the driver’s licenses of

hundreds of thousands of people who cannot afford to pay fines, penalties, and court

costs (hereinafter “fines and costs”) assessed for traffic offenses. In a state where a

driver’s license is indispensable to mobility and economic self-sufficiency, this wealth-

based license revocation scheme strips impoverished North Carolinians of their capacity

to meet their basic needs and those of their families. As a result, hundreds of thousands

of North Carolinians cannot legally use a car to secure and maintain employment, take

2
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 2 of 41

their children to and from school, attend medical appointments, or travel to buy groceries

needed for daily life. This license revocation scheme forces the most economically

vulnerable further into poverty, in violation of their right to due process and equal

protection of the law under the U.S. Constitution.

4.

The DMV automatically revokes a motorist’s driver’s license for an

indefinite period of time if the motorist is reported for non-payment of a traffic ticket

within forty days. There is no hearing or inquiry into the driver’s ability to pay before the

imposition of this additional, unnecessary punishment. The revocation notice that the

DMV provides the driver makes clear the driver must pay the citation in full or the

revocation will become effective sixty days later, and it fails to disclose any other

alternatives for people who cannot afford to pay in full. This automatic revocation

scheme occurs without any determination of ability to pay, sufficient notice, and an

opportunity to be heard, in violation of core principles of due process and equal

protection of the law.

5.

Pursuant to this automatic process—codified at Section 20-24.1 of the

North Carolina General Statutes, and effectuated by the DMV—over 436,000 driver’s

licenses were revoked for non-payment of fines and costs as of fall 2017. This high

volume of revocations is not surprising, given that nearly 15.4% of North Carolina

residents (1.4 million) live in poverty in North Carolina, according to the U.S. Census

Bureau. This is the 13th highest poverty rate in the country. North Carolina also has the

15th highest rate of deep poverty where approximately 709,000 individuals live below

3
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 3 of 41

the mid-point of the federal poverty line. For those who can afford to pay, fines and

court costs are a mere inconvenience. But for those who cannot afford to pay, fines or

costs mean the loss of their driver’s licenses, which frequently has much more serious

economic consequences. This is especially true in a state like North Carolina where a

vast majority of counties are rural and lack accessible public transportation.

6.

Plaintiffs in this lawsuit are low-income North Carolinians who face

irreparable, ongoing harm, in violation of due process and equal protection, because: (a)

their driver’s licenses will be revoked under North Carolina’s license revocation scheme,

N.C.G.S. § 20-24.1, which mandates the automatic revocation of licenses of those who

do not pay their fines and costs, and under the DMV’s enforcement practice, or (b) their

licenses have already been revoked under N.C.G.S. § 20-24.1 and the DMV’s

enforcement practice for non-payment of fines and costs.

7.

Plaintiff Mr. Johnson is a victim of North Carolina’s unconstitutional

license revocation scheme. He was ordered to pay $228, but is unable to do so because

he has been unemployed for an extended period of time. As a result, the DMV has

entered an order revoking his license, which will soon become effective and indefinitely revoked if he does not pay.1 Defendant has not inquired into Mr. Johnson’s ability to

pay, given him an opportunity to be heard before he faces revocation of his driver’s

1 The revocation was to become effective and indefinite on July 28, 2018. Defendant has agreed to stay enforcement of that suspension pending resolution of Plaintiffs’ motion for a preliminary injunction. See DE 24 ¶ 8.
4
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 4 of 41

license, or sent him adequate notice of how he can prevent the revocation if he cannot

pay.

8.

Plaintiff Ms. Bonhomme-Dicks similarly was ordered to pay $388 for a

traffic violation and is unable to pay. As a part-time jobholder who is the sole financial

provider for her son and a contributing financial provider for two grandsons, she is

already in debt and cannot pay $388 toward a traffic ticket without sacrificing her

family’s basic needs. She faces a substantial risk of suspension of her driver’s license

due to her inability to pay $388. The state court will notify the DMV that she has not

paid on or around September 5, 2018, and pursuant to its policy and practice, the DMV

will not inquire into whether Ms. Bonhomme-Dicks has the ability to pay or give her the

opportunity to be heard on her ability to pay before revoking her license indefinitely.

9.

Plaintiff Ms. Yarborough has suffered and will continue to suffer

irreparable harm because of the DMV’s unconstitutional license revocation scheme. She

owes approximately $221 for a traffic ticket, which she cannot afford to pay. The DMV

revoked Ms. Yarborough’s license without ever inquiring into whether she had the ability

to pay or willfully failed to pay her traffic ticket costs. The standard notice that the DMV

sent her said she had to “comply” with the citation and strongly suggested this meant

paying her citation in full. The DMV never notified her that she had other options to

prevent the suspension of her driver’s license if she could not afford to pay.

10.

Plaintiff Ms. Smoot is also a victim of North Carolina’s unconstitutional

license revocation scheme. Ms. Smoot was also convicted of traffic offenses and ordered

5
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 5 of 41

to pay fines and costs, but cannot afford to pay these tickets. The DMV revoked Ms.

Smoot’s driver’s license because she was unable to afford the fines and costs. Defendant

made no inquiry into her ability to pay or whether her non-payment was willful. The

only notice Ms. Smoot received was that she had to pay her citation in full. She was not

given notice of any other options to avoid revocation if she could not afford to pay.

11.

North Carolina punishes hundreds of thousands of low-income people by

revoking their driver’s licenses simply because of their economic status. Accordingly,

Plaintiffs bring these claims on behalf of themselves and all others similarly situated to

challenge the unconstitutional license revocation scheme established by Section 20-24.1

as well as the DMV’s enforcement of that scheme.

12.

Plaintiffs bring this action under 42 U.S.C. § 1983 to vindicate their rights

to due process and equal protection of the law under the Fourteenth Amendment to the

U.S. Constitution. Plaintiffs seek: (1) a declaration that both Section 20-24.1 and the

DMV’s enforcement of the statute are unconstitutional; (2) an injunction enjoining the

DMV from revoking any driver’s license for non-payment under Section 20-24.1; and (3)

an injunction mandating the DMV to lift license revocations previously entered, and to

restore the licenses of individuals that were revoked, for non-payment under Section 20-

24.1.

II. JURISDICTION AND VENUE

13.

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331

(federal question jurisdiction).

6
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 6 of 41

14.

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial

part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.

III. PARTIES

A. Plaintiffs

15.

Plaintiff Seti Johnson is a resident of Mecklenburg County.

16.

Plaintiff Marie Bonhomme-Dicks is a resident of Wake County.

17.

Plaintiff Nichelle Yarborough is a resident of Franklin County.

18.

Plaintiff Sharee Smoot is a resident of Cabarrus County.

B. Defendant

19.

Defendant Torre Jessup is the Commissioner of the North Carolina

Division of Motor Vehicles, who administers the DMV. In this role, Defendant has

exclusive authority to revoke driver’s licenses. N.C.G.S. §§ 20-2(a); 20-39(a). He is

sued in his official capacity as a state actor for declaratory and injunctive relief only.

IV. STATEMENT OF FACTS

A. A Driver’s License is a Necessity to Pursue a Livelihood and Care for One’s Self and Family.

20.

As of fall 2017, over 436,000 individuals had their licenses indefinitely

revoked by the DMV for failure to pay fines and costs assessed for motor vehicle

offenses.

21.

The indefinite revocation of driver’s licenses for non-payment of fines and

costs disproportionately affects low-income persons and communities of color.

7
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 7 of 41

22.

The indefinite revocation of the driver’s licenses of low-income North

Carolinians has devastating consequences on a person’s ability to pursue a livelihood and

meet basic human needs. Eighty-six percent of Americans describe a car as a “necessity

of life,” which is higher than the percentage of people who identified air conditioning, a cell phone, a computer, and other consumer items to be a life necessity.2

23.

Approximately 91% of North Carolina residents travel to work by car and

only 1.1% travel to work by public transit.3

24.

Reliable, accessible public transit remains scarce throughout the vast

majority of North Carolina, particularly in the State’s rural counties.4 Public transit

services in urban areas of the State also provide limited access to jobs.5

25.

As a result, the lack of public transportation options remains a significant

and ubiquitous barrier to obtaining and maintaining employment for many North Carolinians.6

2 Paul Taylor and Wendy Wang et al., The Fading Glory of The Television and Telephone, Pew Research Center 1 (Aug. 10, 2010), https://goo.gl/5knWYW. 3 U.S. Dep’t of Transp., Bur. of Transp. Stats., NORTH CAROLINA: Transportation by the Numbers 2 (2016), https://goo.gl/eM6NWy. 4 Tazra Mitchell, Connecting Workers to Jobs Through Reliable and Accessible Public Transport, Policy & Progress, N.C. Justice Center (Nov. 2012), https://goo.gl/qOF0S (noting scarcity of public transit options); Chandra T. Taylor and J. David Farren et al., Beyond the Bypass: Addressing Rural North Carolina’s Most Important Transportation Needs, So. Envtl. Law Ctr. 1 (2012) (noting rural nature of the state), https://goo.gl/nUVHjG. 5 Mitchell, supra note 3. 6 Id.
8
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 8 of 41

26.

Several studies have noted that a driver’s license is a “very common

requirement” to obtain employment, including most jobs that “can actually lift people out of poverty.”7

27.

Thus, North Carolina’s unconstitutional automatic license revocation

scheme makes it difficult for North Carolinians to find and keep employment,

indefinitely pushing low-income individuals into the criminal justice system and further

into poverty.

28.

Persons whose licenses are revoked face an unenviable choice: drive

illegally and risk further punishment, or stay home and forgo the ability to meet the daily

needs of themselves and their families. When faced with either losing their jobs or

remaining unemployed, or otherwise risking being pulled over for driving with a revoked

license, individuals often chose the latter—risking car impoundment, additional fines and

costs, additional periods of revocation, and even imprisonment for driving on a revoked

license—so they can maintain their livelihood and support their families.

7 See, e.g., Alana Semuels, No Driver’s License, No Job, The Atlantic, June 15, 2016, https://goo.gl/xQjyLj; see also Stephen Bingham et al., Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California 26–28 (2016), https://goo.gl/uLhFfL (finding license suspensions cause loss of employment because employers often screen out those without licenses and because driver’s licenses are necessary for: transportation to and from work; to obtain full time, steady employment; and for job-training programs).
9
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 9 of 41

B. The DMV Automatically Revokes Driver’s Licenses For Non-Payment of Traffic Fines and Costs Pursuant to N.C.G.S. § 20-24.1.

29.

Revocation of driver’s licenses is the exclusive province of the

Commissioner of the North Carolina Division of Motor Vehicles. N.C.G.S. §§ 20-2(a);

20-39(a).

30.

Courts in North Carolina are required to report to the DMV the name of any

person charged with a motor vehicle offense who fails to pay a fine, penalty, or costs

within 40 days of the date specified in the court’s judgment. N.C.G.S. § 20-24.2(a)(2).

31.

Pursuant to Section 20-24.1(a),8 the DMV is required to revoke, and does

revoke, an individual’s driver’s license after it receives notice from a court that the

8 The pertinent subsections of Section 20-24.1 read, in relevant part: (a) The Division must revoke the driver’s license of a person upon receipt of notice from a court that the person was charged with a motor vehicle offense and he: . . . (2) failed to pay a fine, penalty, or court costs ordered by the court. Revocation orders entered under the authority of this section are effective on the sixtieth day after the order is mailed or personally delivered to the person. (b) A license revoked under this section remains revoked until the person whose license has been revoked: . . . (2) demonstrates to the court that he is not the person charged with the offense; or (3) pays the penalty, fine, or costs ordered by the court; or (4) demonstrates to the court that his failure to pay the penalty, fine, or costs was not willful and that he is making a good faith effort to pay
10
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 10 of 41

person has not paid fines and costs. This revocation is automatic and occurs without any

regard to whether the person lacks the ability to pay. Upon receipt of this notice, the

DMV enters a revocation order. Id. § 20-24.1(a)(2). By statute, the revocation order

becomes effective 60 days after it is mailed or personally delivered to the motorist. Id. §

20-24.1(a).

1.

Revocation Notice

32.

The DMV sends the revocation order to a driver upon receipt of a notice

from the court that the driver failed to pay fines and costs, as described in Paragraph 27.

The DMV labels this revocation order an “Official Notice” (hereinafter, “Revocation

Notice”). A copy of a standard Revocation Notice is as follows:

or that the penalty, fine, or costs should be remitted. Upon receipt of notice from the court that the person has satisfied the conditions of this subsection applicable to his case, the Division must restore the person’s license as provided in subsection (c). . . . (b1) A defendant must be afforded an opportunity for a trial or a hearing within a reasonable time of the defendant’s appearance. Upon motion of a defendant, the court must order that a hearing or a trial be heard within a reasonable time. (c) If the person satisfies the conditions of subsection (b) that are applicable to his case before the effective date of the revocation order, the revocation order and any entries on his driving record relating to it shall be deleted and the person does not have to pay the restoration fee set by G.S. 20-7(i1). For all other revocation orders issued pursuant to this section, G.S. 50-13.12 or G.S. 110-142.2, the person must pay the restoration fee and satisfy any other applicable requirements of this Article before the person may be relicensed. . . . . N.C. Gen. Stat. Ann. § 20-24.1.
11
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 11 of 41

N.C. DMV, Revocation Notice to Plaintiff Sharee Smoot (Jan. 10, 2018).

33.

The Revocation Notice states that the driver’s “driving privilege is

scheduled for an indefinite suspension in accordance with general statute 20-24.1 for

failure to pay [a] fine”; provides an “effective date” that is approximately 60 days from

the date the notice is mailed; and identifies the violation date, citation number, court, and

court phone number related to the unpaid fine. Id.

34.

The Revocation Notice then informs the driver that the DMV cannot accept

payments for fines and costs, and the driver must contact the court “to comply with this

12
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 12 of 41

citation.” It goes on to recommend that to prevent revocation the driver must “comply”

with the citation, as follows:

PLEASE COMPLY WITH THIS CITATION PRIOR TO THE EFFECTIVE DATE IN ORDER TO STOP THIS SUSPENSION.

Id.

35.

Once a license is indefinitely revoked for non-payment, the DMV only lifts

the revocation once the person is in “compliance” with the underlying citation. The

Revocation Notice states:

REINSTATEMENT PROCEDURES: UPON COMPLIANCE WITH THIS CITATION, YOU MAY VISIT YOUR LOCAL DRIVER LICENSE OFFICE. AT SUCH TIME PROPER IDENTIFICATION AND PROOF OF AGE WILL BE REQUIRED.

Id.

36.

The Revocation Notice does not provide, and the DMV does not provide,

any information about how to obtain a hearing on the pending revocation.

37.

Neither the Revocation Notice nor the DMV provides any information

indicating that there are any options to permit persons to keep their licenses if they cannot

pay in full.

38.

Neither the Revocation Notice nor the DMV provides any information to

suggest that if a hearing is held, the person’s ability to pay will be a critical issue at the

hearing.

13
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 13 of 41

2.

Lack of any pre-revocation determination of ability to pay

under Section 20.24.1

39.

Neither Section 20-24.1 nor the DMV requires any inquiry into ability to

pay or a determination that motorists willfully failed to pay their fines and costs before

revoking a driver’s license for non-payment.

40.

Instead, if drivers cannot pay in full, Section 20-24.1 places the burden on

motorists to request a hearing to restore their licenses by showing a court that non-

payment was not willful and that they are making a good faith effort to pay or the debt

should be remitted. Id. § 20-24.1(b)(4). Yet, as set forth above, drivers are not informed

about how to access this relief, and are told instead by the DMV that they must “comply”

with the citation to avoid revocation, which, under the circumstances of the Revocation

Notice, implies that the driver must pay the fines and costs in full. As a result, drivers

rarely, if ever, invoke this process, leading to the revocation of tens, and possibly

hundreds of thousands of North Carolinian driver’s licenses each year, without any

hearing or determination that a single one of these motorists was able to pay and willfully

failed to do so.

41.

If the motorist fails to satisfy Section 20-24.1(b), the license remains

indefinitely revoked. See id. § 20-24.1(b), (c).

42.

Neither Section 20-24.1 nor the DMV, as a matter of standard practice,

requires a hearing before the driver’s license revocation becomes effective to determine

whether non-payment was willful. See id. § 20-24.1.

14
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 14 of 41

43.

Accordingly, pursuant to Section 20-24.1, the DMV routinely revokes

driver’s licenses for non-payment without inquiring into the individual’s ability to pay

and ensuring that any non-payment is willful.

44.

Finally, pursuant to Section 20-24.1, the DMV routinely revokes driver’s

licenses for non-payment without providing motorists adequate notice of the revocation

process, including that ability to pay is a material fact to whether a license should be

indefinitely revoked, and without providing them an opportunity to be heard on ability to

pay and whether the non-payment was willful.

C. Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks Face the Unconstitutional Future Revocation of Their Driver’s Licenses Pursuant to Section 20-24.1 Due to an Inability to Pay Fines and Costs.

1.

Mr. Johnson.

45.

Plaintiff Seti Johnson lives in Mecklenburg County with his mother. Mr.

Johnson is married and the father of three children. Mr. Johnson does not have stable

income, and the limited income he does have is put towards his family’s needs.

46.

Mr. Johnson has few economic resources. He has struggled to maintain

work, in part, because his license was revoked at least twice before because he was

unable to pay his traffic tickets, and because he needed to attend multiple court hearings

regarding the unpaid tickets.

47.

Mr. Johnson needs his driver’s license. He relies on his driver’s license to

search for work, and go to work when he is employed, and to travel to the grocery store,

take his children to school and daycare, and to go to the doctor’s office.

15
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 15 of 41

48.

Mr. Johnson is familiar with North Carolina’s procedures for revoking

driver’s licenses for non-payment of fines and costs, and the hurdles erected for restoring

licenses. Mr. Johnson previously has had his license revoked because he could not pay,

and despite his limited income, surmounted the State’s significant hurdles to restoration

by paying to have his license reinstated.

49.

During the summer of 2017, Mr. Johnson was pulled over by the police

while driving. The police officer took Mr. Johnson’s license and told him he was doing

so because he did not pay old traffic tickets. The police officer also issued Mr. Johnson a

ticket for “DWLR not impaired” (i.e., driving while license revoked). When Mr. Johnson

contacted the Cabarrus County District Court (the “District Court”) to determine how to

get his license reinstated, he was told the only option was to pay the unpaid fines and

costs and any late fees in full.

50.

To get his license back, Mr. Johnson used his rent money to pay more than

$700 in fines and costs. Mr. Johnson’s driver’s license was later reinstated by the DMV.

In the meantime, Mr. Johnson fell behind on rent payments and eventually had no choice

but to move in with his mother for housing. During this time, Mr. Johnson also had to

sacrifice buying necessities for himself and his children.

51.

Before Mr. Johnson paid the more than $700 and regained his license, he

was issued another ticket for “DWLR not impaired” in September 2017.

52.

In April 2018, Mr. Johnson appeared in the District Court for the

September DWLR. The prosecutor reduced the charge to “failure to notify DMV of

16
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 16 of 41

address change,” to which Mr. Johnson pled guilty. The District Judge sentenced Mr.

Johnson to pay a $100 fine and $208 in court costs. The judge did not give Mr. Johnson

options to resolve the fine and costs other than paying the total $308 to the District Court.

Nor did the judge conduct a hearing to ask Mr. Johnson about his ability to pay the fines

and costs.

53.

At that hearing, the prosecutor told Mr. Johnson that he would have to pay

$100 that day or his license would be revoked. Mr. Johnson was unemployed at the time

and had only $300 to his name, but he pulled together the $100 to pay that day to avoid

losing his license.

54.

The District Court gave Mr. Johnson a Bill of Costs that states “total

monies owed” are due “within 40 days” and that his license will be suspended if he does

not pay in full. He was also charged an additional $20, referred to as an “installment plan

set up fee,” because he was not able to pay in full that day.

55.

Mr. Johnson’s balance of $228 was due on May 22, 2018.

56.

Mr. Johnson has not paid the fine and costs, and cannot afford to pay at this

time.

57.

The DMV has entered an order revoking his license, and the revocation was

to become effective on or around July 28, 2018, unless he can pay his fines and costs in

full, which he cannot afford to do. After this lawsuit was filed, the DMV elected to stay

enforcement of Mr. Johnson’s license revocation, pending the outcome of Plaintiffs’

motion for a preliminary injunction. See DE 24 ¶ 8.

17
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 17 of 41

58.

Without a driver’s license, it will be difficult for Mr. Johnson to get to

work, get food for his family, take his children to school and daycare, or take his family

to doctor’s appointments. He will likely face the impossible choice of driving illegally to

maintain his new job and provide for his family, or lose the job and face even greater

burdens in providing for his family.

2.

Ms. Bonhomme-Dicks.

59.

Plaintiff Marie Bonhomme-Dicks lives in Wake County. She is the sole

caretaker and financial provider of her 15-year-old son, and she also assists in taking care

of and financially providing for her two grandsons, who sometimes live with her for

months at a time.

60.

Ms. Bonhomme-Dicks struggles financially. Currently, her family’s

monthly living costs are more than her monthly income. She is in rental arrears and has

been living in debt for months.

61.

She has a part-time job as a Reservation Agent with an airlines company.

She is unable to meet her family’s basic needs with the income she earns and even sells

her blood plasma for additional money. She also has endeavored to supplement her

income by driving for ridesharing companies.

62.

Ms. Bonhomme-Dicks relies on her driver’s license to get to and from

work, take her son to school, drop off and pick up her grandsons at daycare, travel to the

grocery store, and take her family to church. Without her driver’s license she would not

be able to maintain her job, her family’s only source of income.

18
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 18 of 41

63.

On July 27, 2018, Ms. Bonhomme-Dicks pleaded guilty to speeding. The

court ordered her to pay fines and costs amounting to $388. If Ms. Bonhomme-Dicks

does not pay $388 by or around September 5, 2018, the court will notify the DMV that

this amount is unpaid, and pursuant to its policy and practice, the DMV will enter an

order revoking her driver’s license, which will become effective approximately sixty days

thereafter.

64.

With mounting debt and a family to take care of, Ms. Bonhomme-Dicks

cannot afford to pay $388 for her traffic citation. A license revocation would result in

devastating consequences for her family. She either will have to stop working and risk

not being able to provide for her son and grandsons, or she will have to drive unlawfully

and face further criminal consequences.

D. Ms. Yarborough and Ms. Smoot Are Suffering Ongoing Harm From the Revocation of Their Licenses Because of Their Inability to Pay Fines and Costs.

1.

Ms. Yarborough.

65.

Plaintiff Nichelle Yarborough lives in Franklin County, North Carolina.

She is a single mother and the sole financial provider for her four young children. Ms.

Yarborough’s driver’s license is currently revoked because she cannot afford to pay the

fines, penalties, and court costs for a traffic ticket.

66.

Ms. Yarborough’s daughter and nine-month-old baby have intellectual

disabilities, and they both require special care. Her nine-month-old baby, who was born

premature at five months, also has serious medical needs. She requires almost weekly

19
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 19 of 41

appointments with various doctors, none of whom are accessible by public transportation

or within walking distance of Ms. Yarborough’s home.

67.

Ms. Yarborough does not have consistent help from friends or family

members in taking care of her children. Ms. Yarborough’s home is located in a rural area

where she has limited mobile phone service. No public transportation is accessible

within walking distance of Ms. Yarborough’s home.

68.

Ms. Yarborough is also facing financial exigencies. She had to quit her job

because of a risk pregnancy and then to take care of her premature baby, and she recently

filed for bankruptcy because she cannot afford to pay her house payments and bills.

69.

Ms. Yarborough has enrolled in community college with the hope that an

education will provide better opportunities for her and her children. The community

college in which she enrolled, however, is not within walking distance of her home.

70.

Ms. Yarborough received a ticket in 2008, the Wake County District Court

assessed $221 in fines and costs, and she was unable to pay it at that time. Unbeknownst

to her, the court then notified the DMV of her non-payment in 2016, and suspended her

license for non-payment in February 2017.

71.

The notice the DMV sent to Ms. Yarborough stated that she must “comply”

with the citation, and said that payment had to be made to the Wake County District

Court, not to the DMV. The notice made no mention of alternative options available to

Ms. Yarborough to prevent her license from being suspended if she could not afford to

pay the ticket costs.

20
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 20 of 41

72.

The DMV never inquired into her ability to pay the costs associated with

the ticket and Ms. Yarborough cannot pay those costs.

73.

Ms. Yarborough is a single mother with no support system. The lack of a

valid driver’s license hinders her ability to provide for her children, two of whom have

special needs. She regularly faces the choice of driving on a revoked license or not

taking her baby to needed medical appointments or her children to school.

2.

Ms. Smoot.

74.

Plaintiff Sharee Smoot lives in Cabarrus County, North Carolina with her

nine-year-old daughter and grandmother. Ms. Smoot’s driver’s license is currently

revoked because she was unable to pay fines, penalties, and court costs for several traffic

tickets.

75.

Ms. Smoot currently works at a call center forty-five minutes away from

her home. She has no family members, friends, or colleagues who can transport her to

and from work. There is no accessible public transportation that Ms. Smoot can use to

get to work. Further, Ms. Smoot cannot afford to pay anyone to drive her to or from

work. As a result, she is forced to make the difficult choice of losing her job and not

being able to care for herself and her family or driving on a revoked driver’s license and

risking additional traffic tickets.

76.

In 2016, Ms. Smoot appeared on a ticket for “DWLR NOT IMPAIRED

REV” (i.e., driving while license revoked) in the Cabarrus County District Court (the

21
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 21 of 41

“District Court”) and was convicted of the lesser charge of “failure to notify DMV of

address change.”

77.

The District Court sentenced Ms. Smoot to pay approximately $308, which

she could not afford due to her limited economic resources. The District Court did not

give her any option to resolve the fine and court costs besides paying in full and did not

conduct a hearing to inquire into or decide her ability to pay the fine and court costs.

78.

Ms. Smoot did not pay the fine and court costs within the 40 days ordered

by the District Court because she did not have the money and, as a result, was assessed a

$50 late fee.

79.

Ms. Smoot later received a Revocation Notice from the DMV that her

license would be effectively revoked if she did not pay by the designated date. The

Notice, however, did not tell her how to avoid the revocation or to reinstate her driver’s

license after the revocation, except to “comply” with the citation by the designated date.

80.

Because of her strained financial circumstances, Ms. Smoot did not pay the

fine and costs by the designated date to attempt to stop the revocation of her license.

81.

Ms. Smoot’s employment at the time only earned her $9 per hour, and she

was receiving Supplemental Nutrition Assistance Program (“SNAP”) benefits. She also

was solely responsible for paying the rent and utilities for the residence she shared with

her mother and daughter and her car note and car insurance. She also bought groceries

and other necessities for herself and her daughter and mother. Between her SNAP

benefits and income, she had barely enough money to meet her and her family’s needs.

22
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 22 of 41

82.

Shortly after she started receiving overtime at work, Ms. Smoot’s SNAP

benefits were canceled, forcing her to choose between her family’s needs, like paying the

light bill or buying groceries.

83.

Ms. Smoot also had to stop attending school at the University of North

Carolina-Charlotte because she could not afford the cost of school and her family’s bills

on her limited income.

84.

Because of her limited financial means, Ms. Smoot could not pay the fine,

penalty, and court costs on her 2016 ticket, and the DMV revoked her driver’s license in

2016.

85.

In 2017, Ms. Smoot was convicted in the District Court of “DWLR NOT

IMPAIRED REV” and ordered to pay $235, which she could not afford to pay that day.

86.

The District Court once again did not provide her any options to resolve the

fine and court costs other than paying the $235 in full and did not conduct a hearing to

inquire into or decide her ability to pay the fine and court costs.

87.

Ms. Smoot again could not pay the fine and costs within 40 days because

she did not have the money and, as a result, was assessed a $50 late fee.

88.

Ms. Smoot received another Revocation Notice from the DMV in 2018,

creating an additional basis for which her license is revoked. This second Notice also

failed to inform her about how to avoid revocation, or how to reinstate her driver’s

license, except to “comply” with the citation by the designated date on the Notice.

23
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 23 of 41

89.

Around this time, Ms. Smoot fell behind on her car payments and rent, and

her car was repossessed. Because she did not have transportation to work, she lost her

job, and she and her daughter had to move in with her grandmother.

90.

Due to these circumstances, she also did not have the money to pay the

fine, penalty, and court costs to stop the revocation by the date on this second Revocation

Notice, and the DMV once again revoked her driver’s license in 2018 for failure to pay.

91.

Ms. Smoot needs a driver’s license to travel to work, doctor’s

appointments, and her church, and to get food for her daughter. Without a valid driver’s

license, she has had to make the difficult choice of staying home, losing her job, and not

being able to care for herself, her daughter, and her grandmother, whose bills she also

helps pay, or drive illegally and risk further punishment.

92.

Ms. Smoot, however, still does not have the money to pay either her 2016

ticket or 2017 ticket to reinstate her license.

93.

Ms. Smoot currently makes $12 per hour at the call center, but she often

works fewer than 40 hours per week because she and other employees are often required

to leave early if incoming call volume is low.

94.

Ms. Smoot worries that without use of a valid driver’s license, she will not

be able to continue working and caring for her family, or will continue getting more

tickets for driving without a valid driver’s license, because she needs to drive to support

and care for herself and her family.

24
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 24 of 41

V. CLASS ALLEGATIONS

95.

Plaintiffs seek to certify two separate classes.

96.

Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks seek class certification

pursuant to Fed. R. Civ. P. 23(a) and (b)(2) related to Claims One, Two, and Three, for

which prospective injunctive and declaratory relief is sought. This Class is defined as:

“All individuals whose driver’s licenses will be revoked in the future by the DMV due to

their failure to pay fines, penalties, or court costs assessed by a court for a traffic

offense.” This Class is referred to as the “Future Revocation Class.”

97.

Plaintiffs Ms. Yarborough and Ms. Smoot seek class certification pursuant

to Fed. R. Civ. P. 23(a) and (b)(2) related to Claims One, Two, and Three, for which

prospective injunctive and declaratory relief is sought. This Class is defined as: “All

individuals whose driver’s licenses have been revoked by the DMV due to their failure to

pay fines, penalties, or court costs assessed by a court for a traffic offense.” This Class is

referred to as the “Revoked Class.”

98.

A class action is the only practicable means by which Plaintiffs and

unknown members of the Future Revocation Class and Revoked Class can challenge

North Carolina’s unconstitutional driver’s license revocation law, Section 20-24.1, and

the DMV’s practice of automatically and indefinitely revoking licenses for non-payment.

99.

As set forth below, this action satisfies the numerosity, commonality,

typicality, and adequacy requirements of Rule 23(a). This action also meets Federal Rule

of Civil Procedure 23(b)(2).

25
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 25 of 41

100.

Numerosity: The exact sizes of the Future Revocation Class and the

Revoked Class are unknown by Plaintiffs, but each Class plainly meets the numerosity

requirement, thereby making joinder impracticable. Based on the DMV’s response to an

open records request, the Revoked Class had approximately 436,000 members in the fall

of 2017—all individuals punished with an automatic and indefinite driver’s license revocation for unpaid fines and costs.9 That number has remained in the hundreds of

thousands and has likely increased since fall 2017, due to the DMV’s ongoing practice of

automatically and indefinitely revoking the driver’s licenses of people unable to pay their

fines and costs.

101.

The Future Revocation Class consists of hundreds of thousands of people

who cannot or will not be able to afford to pay fines and costs and therefore face

revocation of their licenses. The Future Revocation Class is forward-looking with the

potential for new members to join the Class on an ongoing basis. The DMV will

continue to revoke licenses for non-payment absent the requested injunction, causing this

class size to grow over time.

102.

Finally, members of the proposed Classes such as Plaintiffs Mr. Johnson,

Ms. Bonhomme-Dicks, Ms. Yarborough and Ms. Smoot are spread out across the state,

and they are typically low-income individuals who lack financial resources to bring an

independent action or to be joined in this action. Putative members are facing or have

experienced the revocation of their licenses precisely because of their inability to pay;

9 See Exhibit I to Declaration of Samuel Brooke, DE 6.

26
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 26 of 41

thus, it is reasonable to assume they would also be unable to afford counsel to bring their

own separate action against Defendant.

103.

Commonality: All persons comprising the proposed Classes are equally

subject to the provisions of Section 20-24.1, which mandate the DMV to revoke a

motorist’s driver’s license for non-payment without any determination a motorist

willfully failed to pay and without providing adequate notice of, or an opportunity to be

heard on, the effects of revocation before the revocation. All members of the proposed

Classes also are equally subject to the Division’s revocation of driver’s licenses for non-

payment.

104.

Accordingly, Plaintiffs raise claims based on questions of law and fact that

are common to, and typical of, the putative class members of both Classes they seek to

represent. Common questions of fact include:

a. Whether Section 20-24.1 mandates the DMV to revoke, and whether the

DMV has a practice of revoking, a license for non-payment without

requiring a pre-deprivation hearing;

b. Whether Section 20-24.1 mandates the DMV to revoke, and whether the

DMV has a practice of revoking, a license for non-payment without

requiring an inquiry into a motorist’s ability to pay and determining the

motorist’s non-payment was willful; and

c. Whether the revocation notice provided by the DMV to drivers whose

licenses will be revoked for non-payment fails to inform drivers that (1)

27
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 27 of 41

they may have a hearing before the revocation becomes effective; (2) a

critical issue at that hearing will be their ability to pay fines and costs that

they are alleged to have failed to pay; and (3) additional options exist under

Section 20-24.1 to avoid revocation for those who cannot pay in full.

Common questions of law include:

d. Whether Section 20-24.1 and the DMV’s enforcement of the statute violate

the Fourteenth Amendment by failing to inquire into a motorist’s ability to

pay and whether the motorist’s non-payment was willful before revoking a

license for non-payment;

e. Whether Section 20-24.1 and the DMV’s enforcement of the statute violate

the Fourteenth Amendment Procedural Due Process Clause by revoking

licenses before conducting a pre-deprivation hearing;

f. Whether Section 20-24.1 and the DMV’s enforcement of the statute violate

the Fourteenth Amendment Procedural Due Process Clause by failing to

provide adequate advance notice and opportunity to be heard; and

g. Whether injunctive and declaratory relief is appropriate and if so, what the

terms of such relief should be.

105.

The relief sought for each proposed Class is common to all members of that

respective Class. Plaintiffs seek relief declaring Section 20-24.1 and the DMV’s

enforcement of the statute are unconstitutional for both Classes. They additionally seek:

(a) on behalf of the Future Revocation Class, an order enjoining the DMV from revoking

28
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 28 of 41

licenses for non-payment pursuant to Section 20-24.1, and (b) on behalf of the Revoked

Class, an order mandating the DMV to lift license revocations entered under Section 20-

24.1 and to restore the licenses of those whose licenses are presently revoked for non-

payment under Section 20-24.1.

106.

Typicality: The claims of Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks

are typical of the claims of the proposed Future Revocation Class as a whole. Mr.

Johnson and Ms. Bonhomme-Dicks and the putative Future Revocation Class members

will suffer the same direct, irreparable injury of a loss of their driver’s license unless

Section 20-24.1 is declared unconstitutional and the DMV is enjoined from revoking

licenses pursuant to that statute, absent meaningful notice, a pre-revocation opportunity

to be heard, and a determination of willful non-payment before the revocation.

107.

Because Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks and the

proposed Future Revocation Class challenge the same unconstitutional statute, the DMV

will likely assert similar defenses against Mr. Johnson and Ms. Bonhomme-Dicks and

proposed Future Revocation Class members. Moreover, the answer to whether the statute

is unconstitutional will determine the success of the claims of named Plaintiffs Mr.

Johnson and Ms. Bonhomme-Dicks and every other proposed Future Revocation Class

member: if Mr. Johnson and Ms. Bonhomme-Dicks succeed in the claim that the statute

violates their constitutional rights, that ruling will likewise benefit every other member of

the proposed Class.

29
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 29 of 41

108.

Likewise, the claims of Plaintiffs Ms. Yarborough and Ms. Smoot are

typical of the claims of the Proposed Revoked Class as a whole. Plaintiffs Ms.

Yarborough and Ms. Smoot and the putative Revoked Class members have suffered the

same direct, irreparable injury of loss of their driver’s license, and this injury will

continue unless Section 20-24.1 and the DMV’s corresponding practice to revoke for

non-payment are declared unconstitutional and are enjoined.

109.

Because Plaintiffs Ms. Yarborough and Ms. Smoot and the proposed Class

challenge the same unconstitutional statute and DMV practice of enforcing the statute,

the DMV will likely assert similar defenses against Ms. Yarborough and Ms. Smoot and

proposed Revoked Class members. Moreover, the answer to whether the statute and the

DMV’s enforcement of the statute are unconstitutional will determine the success of the

claims of Ms. Yarborough and Ms. Smoot and every other proposed Revoked Class

member: if Ms. Yarborough and Ms. Smoot succeed in the claim that the statute and

DMV violate their constitutional rights, that ruling will likewise benefit every other

member of the proposed Revoked Class.

110.

Adequacy: Plaintiffs Mr. Johnson, Ms. Bonhomme-Dicks, Ms.

Yarborough, and Ms. Smoot will fairly and adequately represent the interests of the

proposed Classes they seek to represent.

111.

Plaintiffs Mr. Johnson, Ms. Bonhomme-Dicks, Ms. Yarborough, and Ms.

Smoot have no interests separate from, or in conflict with, those of the proposed Classes

30
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 30 of 41

they seek to represent and seek no relief other than the declaratory and injunctive relief

sought on behalf of the entire proposed Classes.

112.

Rule 23(b)(2): Class action status under Rule 23(b)(2) is appropriate

because the DMV has acted or failed and/or refused to act on grounds that generally

apply to the proposed Classes, such that preliminary and final injunctive and declaratory

relief is appropriate and necessary with respect to each member of both Classes.

Specifically, pursuant to Section 20-24.1, the DMV automatically and systematically

revokes licenses in an unconstitutional manner—without any determination of willfulness

or ability to pay, without a pre-deprivation hearing, and without adequate notice or

opportunity to be heard—that is generally applicable to both of the proposed Classes.

113.

Accordingly, (a) a declaration that Section 20-24.1, along with the DMV’s

practice of enforcing the statute, violate the Fourteenth Amendment; (b) an injunction

that enjoins enforcement of Section 20-24.1 by the DMV; (c) an injunction that prohibits

the DMV from revoking the licenses of individuals for non-payment under Section 20-

24.1; and (d) an injunction that mandates the lifting of license revocations and the

restoration of unconstitutionally revoked licenses for non-payment under Section 20-

24.1, would benefit every member of each of the proposed Classes.

114.

Rule 23(g): Plaintiffs respectfully request that the undersigned be

appointed as Class Counsel. The undersigned attorneys from the Southern Poverty Law

Center, the Southern Coalition for Social Justice, the American Civil Liberties Union

Foundation, and the American Civil Liberties Union of North Carolina have experience

31
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 31 of 41

in class-action litigation involving complex civil rights matters in federal court and

knowledge of the relevant constitutional and statutory law and Defendant’s practice of

revocation. Counsel also have the resources, expertise, and experience to prosecute this

action.

VI. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF Fourteenth Amendment of the U.S. Constitution (Equal Protection and Due Process Bearden Violation)

115.

Plaintiffs re-allege and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth here.

116.

Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks assert this claim on

behalf of themselves and the proposed Future Revocation Class they seek to represent.

117.

Plaintiffs Ms. Yarborough and Ms. Smoot also bring this claim on behalf of

themselves and the proposed Revoked Class they seek to represent.

118.

The Fourteenth Amendment of the U.S. Constitution prohibits punishing

individuals for non-payment without first determining that they had the ability to pay and

willfully refused to make a monetary payment. See Bearden v. Georgia, 461 U.S. 660

(1983).

119.

Section 20-24.1 of the North Carolina General Statutes requires the DMV

to indefinitely revoke motorists’ licenses for non-payment of their fines, penalties, or

court costs for a motor vehicle offense, without any determination that they willfully

refused to pay.

32
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 32 of 41

120.

Pursuant to Section 20-24.1, Defendant also indefinitely revokes motorists’

licenses for non-payment of their fines and costs for a motor vehicle offense, without any

determination that they willfully refused to pay.

121.

Plaintiffs have a substantial interest in their driver’s licenses.

122.

Revoking the driver’s license of a motorist who does not have the means to

pay, through no fault of her own, does not reasonably further any legitimate government

interest.

123.

There are alternate means to effectuate North Carolina’s interest in

collecting unpaid fines, penalties, and court costs, including, inter alia, extending the

time to make payments, reducing the amount owed, or ordering a motorist to complete

community service or coursework.

124.

Section 20-24.1 violates Plaintiffs’ rights under the Fourteenth Amendment

of the U.S. Constitution by mandating the revocation of motorists’ driver’s licenses for

non-payment, without first determining if they willfully refused to pay.

125.

The DMV’s revocations of licenses under Section 20-24.1 also violates

Plaintiffs’ rights under the Fourteenth Amendment of the U.S. Constitution by mandating

the revocation of motorists’ driver’s licenses for non-payment, without first determining

that they willfully refused to pay.

33
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 33 of 41

SECOND CLAIM FOR RELIEF Fourteenth Amendment of the U.S. Constitution (Procedural Due Process — Failure to Provide a Pre-Deprivation Hearing)

126.

Plaintiffs re-allege and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth here.

127.

Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks assert this claim on

behalf of themselves and the proposed Future Revocation Class they seek to represent.

128.

Plaintiffs Ms. Yarborough and Ms. Smoot also bring this claim on behalf of

themselves and the proposed Revoked Class they seek to represent.

129.

The Fourteenth Amendment of the U.S. Constitution prohibits the State of

North Carolina from depriving any person of life, liberty, or property without due process

of law.

130.

The cornerstone of due process when a property or liberty interest is at

stake is notice and a meaningful opportunity to be heard in a meaningful time and in a

meaningful manner.

131.

Neither the North Carolina General Code, including Sections 20-24.1 and

20-24.2, nor the DMV mandates a deprivation hearing before indefinitely revoking a

license for non-payment of fines and costs.

132.

Neither the North Carolina General Code, including Sections 20-24.1 and

20-24.2, nor the DMV mandates an inquiry into willfulness before indefinitely revoking a

license for non-payment of fines and costs.

34
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 34 of 41

133.

Sections 20-24.1 and 20-24.2 of the North Carolina General Statutes create

a substantive standard for revocation of driver’s licenses that involves the following

factors: whether a driver (1) failed to pay fines and fees 40 days after due, and (2) did so

willfully or in bad faith. Consequently, whether an individual has willfully failed to pay

fines and court costs is a fact that is material to whether a license should be indefinitely

revoked.

134.

North Carolina motorists have a substantial interest in their driver’s

licenses.

135.

The process established under Sections 20-24.1 and 20-24.2 and by the

DMV creates a substantial risk of erroneously revoking the licenses of those who did not

willfully fail to pay or have made good faith efforts to pay, even though the Legislature

determined that these facts are material to the decision to indefinitely revoke a license.

Yet the process established by these statutory provisions and implemented by the DMV

does not mandate a pre-deprivation hearing and determination of willfulness. Thus, it is

impossible for the DMV to accurately identify the individuals whose licenses should be

revoked for willful non-payment and those whose licenses should not be revoked because

they were unable to pay.

136.

A pre-revocation hearing will reduce the risks of erroneous deprivation by

permitting an inquiry into willfulness and good faith.

137.

A pre-revocation hearing to determine willful non-payment would not

impose substantial fiscal and administrative burdens on the State.

35
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 35 of 41

138.

To the extent a pre-revocation hearing would impose some fiscal or

administrative burdens on the State, these burdens are outweighed by the driver’s

substantial interest in maintaining a license and the need to ensure erroneous revocations

do not occur.

139.

There exist no extraordinary circumstances, important governmental or

general public interests—including public safety—that justifies the absence of a hearing

and willfulness determination before revoking licenses of drivers for non-payment.

Indeed, there is no connection between failure to pay and a driver’s ability to safely

operate a vehicle.

140.

Rather, the State’s primary interest at stake here is the collection of fines

and costs. The State’s financial interest in the collection of fines and costs is not

advanced by revoking the licenses of those who cannot afford to pay, and thus is not

advanced without a pre-deprivation hearing.

141.

The revocation of Plaintiffs’ licenses for non-payment without a pre-

revocation hearing to evaluate ability to pay and to determine willfulness violates the

Procedural Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.

THIRD CLAIM FOR RELIEF Fourteenth Amendment of the U.S. Constitution (Procedural Due Process —Failure to Provide Adequate Notice)

142.

Plaintiffs re-allege and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth here.

36
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 36 of 41

143.

Plaintiffs Mr. Johnson and Ms. Bonhomme-Dicks assert this claim on

behalf of themselves and the proposed Future Revocation Class they seek to represent.

144.

Plaintiffs Ms. Yarborough and Ms. Smoot also bring this claim on behalf of

themselves and the proposed Revoked Class they seek to represent.

145.

The Fourteenth Amendment of the U.S. Constitution prohibits the State of

North Carolina from depriving any person of life, liberty, or property without due process

of law.

146.

The cornerstone of due process when a property interest is at stake is notice

and a meaningful opportunity to be heard in a meaningful time and in a meaningful

manner.

147.

Notice must be reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action; to accurately describe legal rights

and options available to the parties; and to afford them an opportunity to present their

objections.

148.

In circumstances where a punishment may be imposed, notice must

adequately inform the party as to what the critical issue of the hearing will be.

149.

The DMV fails to provide adequate notice to drivers either before or after

licenses are revoked for failure to pay fines and costs, in violation of the Due Process

Clause. The notice provided (1) misleadingly informs motorists that the only way they

can prevent or end a license revocation is by paying the fines and costs owed in full; (2)

fails to provide any notice about a right to a hearing; (3) fails to identify the remedies

37
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 37 of 41

available under N.C. Gen. Stat. Ann. Section 20-24.1(b)(4); and (4) fails to inform the

driver that ability to pay will be a critical issue at any hearing.

150.

The license revocations of Plaintiffs and members of both proposed Classes

for non-payment, without adequate notice, violates the Procedural Due Process Clause of

the Fourteenth Amendment to the U.S. Constitution.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request the following relief:

a. Assume jurisdiction over this action;

b. Certify a class, referred to above as the Future Revocation Class, under

Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, represented by Plaintiffs

Mr. Johnson and Ms. Bonhomme-Dicks, related to the First, Second, and Third Claims

for Relief;

c. Certify a class, referred to above as the Revoked Class, under Rules 23(a)

and (b)(2) of the Federal Rules of Civil Procedure, represented by Plaintiffs Ms.

Yarborough and Ms. Smoot, related to First, Second, and Third Claims for Relief;

d. Issue a declaration that Section 20-24.1 of the North Carolina General

Statutes and the DMV’s revocation of licenses for non-payment thereunder:

i. violate the equal protection and due process guarantees of the

Fourteenth Amendment of the U.S. Constitution, as articulated in

Bearden v. Georgia, by revoking a motorist’s driver’s license for non-

38
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 38 of 41

payment without an inquiry into ability to pay and a finding that the motorist willfully failed to pay; ii. violate the Procedural Due Process Clause of the Fourteenth Amendment of the U.S. Constitution by failing to affirmatively provide motorists a pre-deprivation opportunity to be heard on their inability to pay and to affirmatively inquire into willfulness and good faith before the revocation; and iii. violate the Procedural Due Process Clause of the Fourteenth Amendment of the U.S. Constitution by failing to provide adequate notice of the opportunity to raise inability to pay or to otherwise challenge the revocation. e. Enter an injunction to: i. enjoin Section 20-24.1(a)(2) and (b)(3)-(4); ii. prohibit the DMV from revoking driver’s licenses for non-payment under Section 20-24.1(a)(2); and iii. mandate the DMV to lift current license revocations entered pursuant to Section 20-24.1(a)(2), to reinstate licenses without charging a reinstatement fee if there is no other reason to continue the revocation, and to provide notice to the license-holders of this change. f. Award prevailing party costs, including attorney fees; and g. Grant such other relief as the Court deems just and appropriate.
39
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 39 of 41

Dated August 7, 2018.

Respectfully submitted,

/s/ Kristi L. Graunke Kristi L. Graunke

/s/ Samuel Brooke Samuel Brooke On behalf of Counsel for Plaintiffs

Christopher A. Brook (NC Bar No. 33838) Kristi L. Graunke (NC Bar No. 51216)

Cristina Becker (NC Bar No. 46973)

Emily C.R. Early*

Sneha Shah*

SOUTHERN POVERTY LAW CENTER

AMERICAN CIVIL LIBERTIES UNION 150 E. Ponce de Leon Ave., Ste. 340

OF NORTH CAROLINA LEGAL

Decatur, Georgia 30030

FOUNDATION

T: 404-221-4036

P.O. Box 28004

E: kristi.graunke@splcenter.org

Raleigh, North Carolina 27611

E: emily.early@splcenter.org

T: 919-834-3466

E: cbrook@acluofnc.org

Samuel Brooke*

E: cbecker@acluofnc.org

Danielle Davis*

E: sshah@acluofnc.org

SOUTHERN POVERTY LAW CENTER

400 Washington Avenue

Nusrat J. Choudhury*

Montgomery, Alabama 36104

R. Orion Danjuma*

T: 334-956-8200

AMERICAN CIVIL LIBERTIES UNION F: 334-956-8481

125 Broad Street, 18th Floor

E: samuel.brooke@splcenter.org

New York, New York 10004

E: danielle.davis@splcenter.org

T: 212-519-7876

T: 212-549-2563

Laura Holland (NC Bar No. 50781)

E: nchoudhury@aclu.org

SOUTHERN COALITION FOR SOCIAL

E: odanjuma@aclu.org

JUSTICE

1415 W. NC Hwy 54, Suite 101

*Appearing by Special Appearance

Durham, North Carolina 27707

pursuant to L.R. 83.1(d)

T: 919-323-3380 x.161

F: 919-323-3942

E: lauraholland@southerncoalition.org

Counsel for Plaintiffs

40
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 40 of 41

CERTIFICATE OF SERVICE I certify that arrangements have been made to this day deliver a true and correct copy of the foregoing by this Court’s CM/ECF system to the following attorney(s) of record for Defendant: Neil Dalton Kathryne E. Hathcock Ann W. Mathews Alexander Peters N.C. Department of Justice P.O. Box 629 Raleigh, North Carolina 27602 ndalton@ncdoj.gov khathcock@ncdoj.gov amathews@ncdoj.gov apeters@ncdoj.gov DATED this August 7, 2018.
/s/ Samuel Brooke Samuel Brooke
41
Case 1:18-cv-00467-TDS-LPA Document 35 Filed 08/07/18 Page 41 of 41

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SETI JOHNSON and MARIE BONHOMME-DICKS, on behalf of themselves and those similarly situated, and SHAREE SMOOT and NICHELLE YARBOROUGH, on behalf of themselves and those similarily situated,

Plaintiffs,

Case No. 1:18-cv-00467

v.

(CLASS ACTION)

TORRE JESSUP, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles,

Defendant.

PLAINTIFFS’ SECOND MOTION FOR CLASS CERTIFICATION COME NOW Plaintiffs Seti Johnson, Marie Bonhomme-Dicks, Sharee Smoot, and Nichelle Yarborough, and move the Court, pursuant to Rule 23(a), (b)(2), and (g) of the Federal Rules of Civil Procedure, for certification of two classes. In support of this Motion, Plaintiffs state as follows: 1. Mr. Seti Johnson and Ms. Marie Bonhomme-Dicks move for certification of and seek to represent a class referred to as the Future Revocation Class, which is proposed to be defined as: All individuals whose drivers’ licenses will be revoked in the future by the DMV due to their failure to pay fines, penalties, or court costs assessed by a court for a traffic offense.

1
Case 1:18-cv-00467-TDS-LPA Document 36 Filed 08/07/18 Page 1 of 5

2. Ms. Sharee Smoot and Ms. Nichelle Yarborough move for certification of and seek to represent a class referred to as the Revoked Class, which is proposed to be defined as:
All individuals whose driver’s licenses have been revoked by the DMV due to their failure to pay fines, penalties, or court costs assessed by a court for a traffic offense. 3. Certification is appropriate under Rule 23(a)(1) because joinder is impracticable. Each class represents hundreds of thousands of low-income individuals who are spread across the state and do not have the ability to litigate their claims individually. 4. Certification is appropriate under Rule 23(a)(2) because the claims of the classes are common. The legal and factual issues causing injury to both classes derive from the mandate of N.C.G.S. § 20-24.1, as well as the DMV’s uniform practice of revoking driver’s licenses for failure to pay a fine, penalty, or court costs without any meaningful notice, pre-deprivation hearing, or determination of ability to pay. 5. Certification is appropriate under Rule 23(a)(3) because Plaintiffs’ claims are typical of those of the putative Class members. The statutes and challenged practices equally apply to the named Plaintiffs and all other putative members of both Classes. 6. Certification is appropriate under Rule 23(a)(4) and 23(g) because Plaintiffs can adequately represent the Future Revocation Class and the Revoked Class and are represented by competent counsel. Plaintiffs have no conflicts with the putative class
2
Case 1:18-cv-00467-TDS-LPA Document 36 Filed 08/07/18 Page 2 of 5

members, are willing and able to lead the litigation, and are represented by experienced counsel.
7. Certification is appropriate under Rule 23(b)(2) because the DMV has acted on grounds generally applicable to members of both Classes through the challenged practices and pursuant to Section 20-24.1. The ongoing violation of the constitutional rights of Plaintiffs and the putative members of both Classes can be resolved through class-wide declarations and class-wide injunctions. Specifically, Mr. Johnson and Ms. Bonhomme-Dicks seek an injunction on behalf of themselves and the Future Revocation Class that would enjoin the DMV’s enforcement of and revocation of driver’s licenses under Section 20-24.1(a)(2) and (b)(3)-(4). Ms. Smoot and Ms. Yarborough seek an injunction on behalf of the Revoked Class that would mandate that the DMV lift current license revocations entered pursuant to Section 20-24.1(a)(2), reinstate licenses without charging a reinstatement fee if there exists no reason other than nonpayment to continue the revocation, and provide notice to license-holders of this change. Plaintiffs also seek a declaration that both Section 20-24.1 and the DMV’s enforcement of the statute are unconstitutional.
8. Plaintiffs respectfully request the Court grant this Motion based on the foregoing; the accompanying Memorandum of Law in Support; the Declarations of Mr. Johnson, Ms. Smoot, Ms. Bonhomme-Dicks, Ms. Yarborough, and Mr. Brooke and the Exhibits appended thereto; and any other matters presented to the Court.
3
Case 1:18-cv-00467-TDS-LPA Document 36 Filed 08/07/18 Page 3 of 5

Dated August 7, 2018.

Respectfully submitted,

/s/ Kristi L. Graunke
Kristi L. Graunke

/s/ Samuel Brooke Samuel Brooke On behalf of Counsel for Plaintiffs

Christopher A. Brook (NC Bar No. 33838) Kristi L. Graunke (NC Bar No. 51216)

Cristina Becker (NC Bar No. 46973)

Emily C.R. Early*

Sneha Shah*

SOUTHERN POVERTY LAW CENTER

AMERICAN CIVIL LIBERTIES UNION 150 E. Ponce de Leon Ave., Ste. 340

OF NORTH CAROLINA LEGAL

Decatur, Georgia 30030

FOUNDATION

T: 404-221-4036

P.O. Box 28004

E: kristi.graunke@splcenter.org

Raleigh, North Carolina 27611

E: emily.early@splcenter.org

T: 919-834-3466

E: cbrook@acluofnc.org

Samuel Brooke*

E: cbecker@acluofnc.org

Danielle Davis*

E: sshah@acluofnc.org

SOUTHERN POVERTY LAW CENTER

400 Washington Avenue

Nusrat J. Choudhury*

Montgomery, Alabama 36104

R. Orion Danjuma*

T: 334-956-8200

AMERICAN CIVIL LIBERTIES UNION F: 334-956-8481

125 Broad Street, 18th Floor

E: samuel.brooke@splcenter.org

New York, New York 10004

E: danielle.davis@splcenter.org

T: 212-519-7876

T: 212-549-2563

Laura Holland (NC Bar No. 50781)

E: nchoudhury@aclu.org

SOUTHERN COALITION FOR SOCIAL

E: odanjuma@aclu.org

JUSTICE

1415 W. NC Hwy 54, Suite 101

*Appearing by Special Appearance

Durham, North Carolina 27707

pursuant to L.R. 83.1(d)

T: 919-323-3380 x.161

F: 919-323-3942

E: lauraholland@southerncoalition.org

Counsel for Plaintiffs

4
Case 1:18-cv-00467-TDS-LPA Document 36 Filed 08/07/18 Page 4 of 5

CERTIFICATE OF SERVICE I certify that arrangements have been made to this day deliver a true and correct copy of the foregoing by this Court’s CM/ECF system to the following attorney(s) of record for Defendant: Neil Dalton Kathryne E. Hathcock Ann W. Mathews Alexander Peters N.C. Department of Justice P.O. Box 629 Raleigh, North Carolina 27602 ndalton@ncdoj.gov khathcock@ncdoj.gov amathews@ncdoj.gov apeters@ncdoj.gov DATED this August 7, 2018.
/s/ Samuel Brooke Samuel Brooke
Case 1:18-cv-00467-TDS-LPA Document 36 Filed 08/07/18 Page 5 of 5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SETI JOHNSON and MARIE BONHOMME-DICKS, on behalf of themselves and those similarily situated, and SHAREE SMOOT and NICHELLE YARBOROUGH, on behalf of themselves and those similarily situated,
Plaintiffs,
v.

Case No. 1:18-cv-00467 (CLASS ACTION)

TORRE JESSUP, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles,

Defendant.

PLAINTIFFS’ SECOND MOTION FOR PRELIMINARY INJUNCTION COME NOW Plaintiffs Seti Johnson, Marie Bonhomme-Dicks, Sharee Smoot,
and Nichelle Yarborough, pursuant to Rule 65 of the Federal Rules of Civil Procedure, to move the Court for a preliminary injunction against Defendant Torre Jessup, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles (the “DMV”), in connection with Plaintiffs’ First, Second, and Third Claims for Relief. In support of this Motion, Plaintiffs state as follows:
1. This matter challenges Section 20-24.1 of the North Carolina General Statutes, which mandates the DMV to indefinitely revoke individuals’ driver’s licenses for non-payment of fines, court costs, and penalties for traffic offenses (“fines and costs”), without any determination of ability to pay, pre-deprivation hearing on
1
Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 1 of 7

willfulness of non-payment, or meaningful notice—in violation of the Fourteenth Amendment of the U.S. Constitution.
2. Mr. Seti Johnson is facing imminent indefinite revocation of his driver’s license because he has been, and remains, unable to pay outstanding fines and costs for a 2017 traffic ticket. Declaration of Seti Johnson (“Johnson Decl.”) ¶¶ 13, 14, DE 4. Mr. Johnson’s license was to be suspended on or around July 24, 2018, see id., though that suspension has now been delayed until resolution of this motion, see DE 24 ¶ 8. Mr. Johnson relies on his driver’s license to search for work and when employed, to travel to work; to travel to the grocery store; to take his children to school and daycare; and to attend doctor’s appointments. Johnson Decl. ¶¶ 4, 16. Absent injunctive relief, he will indefinitely lose his license and, as a result, will not be able to maintain employment and care for himself and his family. Id. ¶¶ 16, 18.
3. Ms. Bonhomme-Dicks is facing imminent indefinite revocation of her driver’s license because she has been, and remains, unable to pay outstanding fines and costs for a 2017 traffic ticket. Declaration of Marie Bonhomme-Dicks (“BonhommeDicks Decl.”) ¶¶ 7-10, being filed concurrently. Ms. Bonhomme-Dicks relies on her driver’s license to go to work; take her child and grandchild to school, and school-related events, church, and daycare; and to travel to the grocery store. Id. ¶ 6. Absent injunctive relief, she will indefinitely lose her license and, as a result, will not be able to maintain employment and care for herself and her family. Id. ¶ 10.
2
Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 2 of 7

4. The DMV indefinitely revoked Ms. Smoot’s license in 2016 and 2018 for non-payment of fines and costs that she could not afford, and her license remains revoked. Declaration of Sharee Smoot (“Smoot Decl.”) ¶¶ 3, 7–14, 17–20, DE 5. Ms. Smoot needs a valid driver’s license to support herself and her daughter. She currently works forty-five minutes from her home, but has no one to transport her to and from work. Id. ¶ 4. She also needs a license to travel to doctor’s appointments and her church and to get food for her daughter. Id. ¶ 21. Ms. Smoot, however, still does not have money to pay her traffic tickets due to strained financial circumstances. Id. ¶¶ 22–23. Thus, absent injunctive relief, she will continue to experience harm from the indefinite revocation of her license and will not be able to maintain employment and care for herself and her family. Id. ¶ 24.
5. Ms. Yarborough’s license is currently revoked for non-payment of fines and costs that she could not afford. Declaration of Nichelle Yarborough (“Yarborough Decl.”) ¶¶ 3, 7, being filed concurrently. Ms. Yarborough needs a valid driver’s license to support herself and her children, including an infant born prematurely and another child with certain disabilities. Id. ¶ 2. She is presently unemployed, but is working to get a college education to further her opportunities. Id. ¶¶ 5, 11. She needs to drive to continue her education, and to care for her children. Id. ¶¶ 2, 11. Because she is unemployed, Ms. Yarborough still does not have money to pay her traffic ticket. Id. ¶¶ 5, 11. Thus, absent injunctive relief, she will continue to experience harm from the
3
Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 3 of 7

indefinite revocation of her license and will not be able to maintain employment and care for herself and her family.
6. None of the Plaintiffs has ever been provided any hearing or assessment of ability to pay. Nor have they received any notice of existing alternatives under state law for those who cannot pay. Johnson Decl. ¶¶ 10, 15; Bonhomme-Dicks Decl. ¶¶ 8-10, 12; Smoot Decl. ¶¶ 6, 8, 16, 18; Yarborough Decl. ¶¶ 8-9.
7. Thus, as detailed in Plaintiffs’ accompanying Memorandum of Law, Plaintiffs are likely to prevail on the merits of their First, Second, and Third Claims for Relief that Section 20-24.1 violates the Fourteenth Amendment to U.S. Constitution because it mandates the DMV to revoke licenses for non-payment without any determination of ability to pay, a hearing to determine willfulness of non-payment, or meaningful notice.
8. If a preliminary injunction does not issue, Mr. Johnson and Ms. Bonhomme-Dicks will suffer the immediate irreparable injury of the loss of their driver’s licenses, and Ms. Smoot and Ms. Yarborough will continue to suffer irreparable injury from the ongoing revocation of their driver’s licenses. Thus, Plaintiffs currently face or will soon face the impossible choice of staying at home and being unable to provide for themselves and their families or of driving illegally to meet basic needs.
9. The threatened injury to Plaintiffs and the putative Classes significantly outweighs any possible injury a preliminary injunction may cause Defendant, and the injunction would serve the public interest.
4
Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 4 of 7

10. For these reasons and the reasons set forth in the accompanying

Memorandum of Law in Support, the declarations of Mr. Johnson (DE 4), Ms. Smoot

(DE 5), Mr. Samuel Brooke (DE 6), Ms. Bonhomme-Dicks (being filed concurrently),

Ms. Yarborough (being filed concurrently) and the Exhibits appended thereto; and any

other matters presented to the Court, Plaintiffs respectfully request the Court grant this

Motion and enter a preliminary injunction that: (1) enjoins the DMV’s enforcement of

Section 20-24.1(a)(2) and (b)(3)-(4) of the North Carolina General Statutes; (2) enjoins

the DMV’s revocation of drivers’ licenses for non-payment under Section 20-24.1(a)(2);

and (3) mandates the DMV to lift current license revocations entered pursuant to Section

20-24.1(a)(2), reinstate licenses without charging a reinstatement fee if there are no other

bases for the revocation, and provide notice to the license-holders of this change, pending

a final determination on the merits of Plaintiffs’ claims.

Dated August 7, 2018.

/s/ Kristi L. Graunke Kristi L. Graunke

/s/ Samuel Brooke Samuel Brooke On behalf of Counsel for Plaintiffs

Christopher A. Brook (NC Bar No. 33838) Kristi L. Graunke (NC Bar No. 51216)

Cristina Becker (NC Bar No. 46973)

Emily C.R. Early*

Sneha Shah*

SOUTHERN POVERTY LAW CENTER

AMERICAN CIVIL LIBERTIES UNION 150 E. Ponce de Leon Ave., Ste. 340

OF NORTH CAROLINA LEGAL

Decatur, Georgia 30030

FOUNDATION

T: 404-221-4036

P.O. Box 28004

E: kristi.graunke@splcenter.org

Raleigh, North Carolina 27611

E: emily.early@splcenter.org

T: 919-834-3466

5

Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 5 of 7

E: cbrook@acluofnc.org E: cbecker@acluofnc.org E: sshah@acluofnc.org
Nusrat J. Choudhury* R. Orion Danjuma* AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, New York 10004 T: 212-519-7876 T: 212-549-2563 E: nchoudhury@aclu.org E: odanjuma@aclu.org
*Appearing by Special Appearance pursuant to L.R. 83.1(d)

Samuel Brooke* Danielle Davis* SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 T: 334-956-8200 F: 334-956-8481 E: samuel.brooke@splcenter.org E: danielle.davis@splcenter.org
Laura Holland (NC Bar No. 50781) SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. NC Hwy 54, Suite 101 Durham, North Carolina 27707 T: 919-323-3380 x.161 F: 919-323-3942 E: lauraholland@southerncoalition.org

Counsel for Plaintiffs

6
Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 6 of 7

CERTIFICATE OF SERVICE I certify that arrangements have been made to this day deliver a true and correct copy of the foregoing by this Court’s CM/ECF system to the following attorney(s) of record for Defendant:

Neil Dalton Kathryne E. Hathcock Ann W. Mathews Alexander Peters N.C. Department of Justice P.O. Box 629 Raleigh, North Carolina 27602 ndalton@ncdoj.gov khathcock@ncdoj.gov amathews@ncdoj.gov apeters@ncdoj.gov

DATED this August 7, 2018.

/s/ Samuel Brooke Samuel Brooke

7
Case 1:18-cv-00467-TDS-LPA Document 38 Filed 08/07/18 Page 7 of 7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SETI JOHNSON and MARIE

)

BONHOMME-DICKS, on behalf of )

themselves and those similarly )

situated, and SHAREE SMOOT and )

NICHELLE YARBOROUGH, on behalf )

of themselves and those

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

TORRE JESSUP, in his official )

capacity as Commissioner of

)

the North Carolina Division of )

Motor Vehicles,

)

)

Defendant.

)

1:18-cv-467

MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, Chief District Judge.
This civil action arises out of the revocation of Plaintiffs’ North Carolina driver’s licenses, pursuant to N.C. Gen. Stat. § 2024.1(a)(2), because of Plaintiffs’ failure to pay court fines and costs for motor vehicle violations. Plaintiffs seek declaratory and injunctive relief against Defendant Torre Jessup, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles (“DMV”), for enforcing section 20-24.1(a)(2) against them in alleged violation of their equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiffs — who have limited

Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 1 of 54

financial means — claim that it is unconstitutional for the DMV to revoke their driver’s licenses for failure to pay fines and costs without first affirmatively determining that they have the ability to pay.
Before the court are the Commissioner’s motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (Doc. 46) and Plaintiffs’ motions for class certification pursuant to Rule 23(b)(2) (Doc. 36) and preliminary injunction pursuant to Rule 65 (Doc. 38). For the reasons set forth below, the Commissioner’s motion for judgment on the pleadings will be granted in part and denied in part, Plaintiffs’ motion for class certification will be granted, and Plaintiffs’ motion for preliminary injunction will be denied. I. BACKGROUND
Like many states, North Carolina has enacted statutes directing the revocation of driver’s licenses for failure to pay fines and costs imposed for traffic violations. The statutory scheme works as follows: North Carolina courts “must report” to the DMV the name of a traffic defendant who “fail[s] to pay a fine, penalty, or costs within 40 days of the date specified in the court’s judgment.” N.C. Gen. Stat. § 20-24.2(a)(2). Upon receipt of this notice, the DMV “must revoke” the traffic defendant’s driver’s license indefinitely. Id. § 20-24.1(a). Revocation is accomplished through the DMV’s issuance of a “[r]evocation
2
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 2 of 54

order[]” to the traffic defendant that becomes “effective on the sixtieth day after the order is mailed or personally delivered to the person.” Id.
Unlike some states, North Carolina provides a procedure by which traffic defendants can avoid or undo license revocation by showing that their failure to pay is no fault of their own.1 Section 20-24.1(b)(4) states that a traffic defendant may “demonstrate[] to the court that his failure to pay the penalty, fine, or costs was not willful and that he is making a good faith effort to pay or that the penalty, fine, or costs should be remitted.” If the court determines that the traffic defendant has made a sufficient showing, the court notifies the DMV; upon receipt of this notice, the DMV is required to rescind any revocation order (if the order is pending but not yet in effect) or restore the traffic defendant’s license (if the revocation order has already gone into effect). Id. § 20-24.1(b), (c). Moreover, section 2024.1(b1) expressly provides an opportunity for traffic defendants to address their ability to pay: “A defendant must be afforded an opportunity for a trial or a hearing within a reasonable time of the defendant’s appearance . . . [u]pon motion of [the] defendant.” The revocation orders the DMV issues to traffic defendants cite to
1 For discussion of other state statutory schemes, see, e.g., Mendoza v. Garrett, No. 3:18-cv-01634-HZ, 2018 WL 6528011, at *1–4 (D. Or. Dec. 12, 2018); Robinson v. Purkey, 326 F.R.D. 105, 115–23 (M.D. Tenn. 2018); Fowler v. Johnson, No. 17-11441, 2017 WL 6379676, at *1–2 (E.D. Mich. Dec. 14, 2017), appeal filed, No. 17-2504 (6th Cir. Dec. 19, 2017).
3
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 3 of 54

section 20-24.1 but do not mention any of its provisions or otherwise refer to the ability-to-pay exception. (Doc. 35 ¶ 32.)
Named Plaintiffs Nichelle Yarborough and Sharee Smoot are low-income North Carolinians whose licenses have been suspended by the DMV for failure to pay fines and costs. (Docs. 5, 41.) Named Plaintiffs Seti Johnson and Marie Bonhomme-Dicks are low-income North Carolinians who currently owe fines and costs for traffic violations, and who are in imminent danger of license revocation.2 (Docs. 4, 40, 63.) The named Plaintiffs claim that they are unable to pay the fines and costs imposed on them and that neither the state court nor the DMV has inquired into their ability to pay.3 (Doc. 35 at 1–6.)
The named Plaintiffs are not alone. In the three-year period prior to the initiation of this lawsuit, about 55,000 traffic defendants received a revocation order but made their payments prior to the revocation date. (Doc. 62.) About 68,000 traffic defendants failed to make their payments by the revocation date,
2 The DMV has agreed to stay revocation of Johnson’s license pending resolution of Plaintiffs’ motion for preliminary injunction. (Doc. 55 ¶ 17.) 3 The exception to the former is Smoot, who apparently became able to pay her fines and costs at some point after this lawsuit was filed. Plaintiffs recognized at the hearing on the present motions that her individual claims have become moot. As to the latter, Plaintiffs’ counsel explained at the hearing that the state court waived BonhommeDicks’ fine for inability to pay at her initial appearance. However, according to Bonhomme-Dicks, the judge told her that “the legislature . . . prevented him from” waiving costs and proceeded to impose costs in the amount of $388. (Doc. 40 ¶ 8.)
4
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 4 of 54

had their licenses revoked, but eventually made the payments sometime thereafter. (Id.) About 63,000 traffic defendants never made their payments, and their licenses remain revoked. (Id.)
On May 30, 2018, Johnson and Smoot initiated this lawsuit. (Doc. 1.) Plaintiffs claim that the DMV’s enforcement of section 20-24.1 violates the Fourteenth Amendment in three ways: (1) by violating their equal protection and substantive due process right not to be penalized for non-payment without the State first determining that they were able to pay and willfully refused; (2) by violating their procedural due process right to a hearing on ability to pay prior to revocation; and (3) by violating their procedural due process right to adequate notice. (Doc. 35 at 32– 38.)
Plaintiffs contemporaneously moved for class certification (Doc. 3) and for preliminary injunction (Doc. 2), but later withdrew them in order to file an amended complaint (Doc. 35) on August 7, 2018, adding Yarborough and Bonhomme-Dicks as Plaintiffs. Plaintiffs then filed second motions for class certification (Doc. 36) and for preliminary injunction (Doc. 38). The Commissioner answered the amended complaint (Doc. 43) and moved for judgment on the pleadings (Doc. 46). On March 13, 2019, the court held a hearing on all outstanding motions, which are ready for decision.
5
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 5 of 54

II. ANALYSIS A. The Commissioner’s Motion for Judgment on the Pleadings The legal standard governing motions for judgment on the
pleadings is the same as that employed on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable,” demonstrating “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57).
1. Subject Matter Jurisdiction The Commissioner first argues that the court lacks subject matter jurisdiction over Plaintiffs’ claims under the RookerFeldman doctrine.4 Plaintiffs contend that the Commissioner reads
4 Defendants normally raise subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss. However, “[o]bjections to subject-matter jurisdiction . . . may be raised at any time.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”). “[I]f a party raises an issue of subject matter jurisdiction on his motion for judgment on the pleadings, the court will treat the motion as if it had been brought under Rule 12(b)(1).” Kelly v. United States, No. 7:10-CV-172-
6
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 6 of 54

the doctrine too broadly and that it does not apply in this instance.
The Rooker-Feldman doctrine — so named because of the Supreme Court’s foundational decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) — states that federal district courts may not sit in review of state court decisions. Although the doctrine was construed expansively in the decades following Rooker, the Supreme Court has since clarified the “narrow” circumstances in which it is applicable: “cases brought by statecourt losers complaining of injuries caused by state-court
{ "pageset": "S93
judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Where a plaintiff “is not challenging the state-court decision, the Rooker-Feldman doctrine does not apply.” Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718 (4th Cir. 2006).
In the instant case, Plaintiffs do not challenge any judgment of a North Carolina court. The Commissioner’s argument to the contrary is based on a misunderstanding of the statutory scheme at issue, as evidenced by his repeated assertion that Plaintiffs are
FL, 2013 WL 5348455, at *3 (E.D.N.C. Sept. 23, 2013) (alteration in original) (quoting Newbrough v. Piedmont Reg’l Jail Auth., No. 3:10CV867HEH, 2012 WL 169988, at *2 (E.D. Va. Jan. 19, 2012)).
7
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 7 of 54

“asking this Court to prohibit DMV from complying with license revocation orders issued by North Carolina courts.” (Doc. 47 at 11.) It is simply untrue that North Carolina courts issue “license revocation orders” under the statutory scheme at issue here. Instead, state courts “report to the [DMV] the name of any person charged with a motor vehicle offense” who fails to pay a traffic violation fine or cost. N.C. Gen. Stat. § 20-24.2(a) (emphasis added). Upon receiving that “notice from [the] court,” it is the DMV that issues a “[r]evocation order[],” which it then “mail[s] or personally deliver[s] to the person.” Id. § 20-24.1(a) (emphasis added).
The only state court judgment relevant to this process is the underlying imposition of a traffic violation fine or cost, and Plaintiffs expressly do not challenge that judgment. (Doc. 51 at 12.) Plaintiffs’ claims do not in any way implicate the soundness of the underlying traffic conviction and pecuniary imposition. A finding by this court that the DMV cannot constitutionally revoke Plaintiffs’ driver’s licenses for failure to pay a court-ordered fine or cost without first determining their ability to pay would not imply that the state court should not have imposed the fine or cost in the first place. See Stinnie v. Holcomb, 355 F. Supp. 3d 514, 524 (W.D. Va. 2018) (“Plaintiffs do not contest their convictions or the fines and costs assessed by the state court. Therefore, the outcome of this case will not affect those
8
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 8 of 54

judgments.” (citation omitted)).5 Because a ruling for Plaintiffs
would not involve this court’s “review and rejection” of any state
court judgment, Exxon, 544 U.S. at 284, the Rooker-Feldman doctrine
does not bar Plaintiffs’ claims. See Stinnie, 355 F. Supp. 3d at
523–24; Fowler v. Johnson, No. 17-11441, 2017 WL 6379676, at *3
(E.D. Mich. Dec. 14, 2017) (“Plaintiffs are not . . . challenging
the imposition of any fines, costs, or assessments . . . . Instead,
Plaintiffs are challenging Defendant’s revocation of their
driver’s licenses for failing to pay their traffic debt without
consideration of their willfulness or ability to pay.
The Rooker-Feldman doctrine does not extend to Plaintiffs’
claims.”), appeal filed, No. 17-2504 (6th Cir. Dec. 19, 2017).
5 The Stinnie court had previously dismissed the plaintiffs’ original complaint under the Rooker-Feldman doctrine after finding that the Virginia statute at issue directed “license suspension orders [to be] issued by the state court.” Stinnie v. Holcomb, No. 3:16-cv-00044, 2017 WL 963234, at *12 (W.D. Va. Mar. 13, 2017); see Stinnie v. Holcomb, 734 F. App’x 858, 861 n.* (4th Cir. 2018). Even if the Stinnie court had not found Rooker-Feldman inapplicable in its later ruling on an amended complaint, see 355 F. Supp. 3d at 523–24, its former reasoning would be inapposite to the North Carolina statute at issue here, under which state courts do not issue revocation orders. See N.C. Gen. Stat. §§ 20-24.1, 20-24.2. Furthermore, the Commissioner’s representation that the Fourth Circuit “affirm[ed] dismissal of [the Stinnie] Complaint on the grounds that Plaintiffs’ claims were barred by the Rooker-Feldman doctrine” (Doc. 47 at 9) evinces a fundamental misunderstanding of the Fourth Circuit’s ruling. The Fourth Circuit dismissed the appeal for lack of a “final, appealable order,” expressly cautioning that its “discussion should not be read to indicate that [it] would hold that the district court’s analysis was free from error were [it] to consider the appeal on the merits.” 734 F. App’x at 862–63 (internal quotation marks and brackets omitted). Only Chief Judge Gregory reached the Rooker-Feldman issue, noting in dissent that Rooker-Feldman “is an exceedingly narrow doctrine that has no relevance to the facts of this case.” Id. at 868 (Gregory, J., dissenting).
9
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 9 of 54

Consequently, the Commissioner’s reliance on Rooker-Feldman to avoid this litigation is misplaced.
2. Sovereign Immunity The Commissioner next makes perfunctory arguments that Plaintiffs’ claims are barred by the Eleventh Amendment: first, that Plaintiffs’ claims impermissibly require the court to review past state acts that do not amount to ongoing constitutional violations, and second that the Commissioner himself is not sufficiently connected with the allegedly unconstitutional acts to be a proper defendant under Ex Parte Young, 209 U.S. 123 (1908). Both contentions are unpersuasive. The Eleventh Amendment generally “confirms the sovereign status of the States by shielding them from suits by individuals absent their consent.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). However, the Eleventh Amendment excepts from its bar “suits for prospective injunctive relief against state officials acting in violation of a federal law.” Id. (citing Ex Parte Young, 209 U.S. 123). This exception has two components: whether “(1) the violation for which relief is sought is an ongoing one, and (2) the relief sought is only prospective.” Republic of Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998). As to the first, a plaintiff must merely show that he is “presently experienc[ing the] harmful consequences of [the State’s] past conduct” in order to properly claim an “ongoing violation[] of
10
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 10 of 54

federally protected constitutional rights” sufficient to satisfy Ex Parte Young. Id. at 628; see also Coakley v. Welch, 877 F.2d 304, 306–07 & n.2 (4th Cir. 1989) (finding that a plaintiff’s claim that he had been unconstitutionally fired alleged an “ongoing violation” because his wrongful termination “continues to harm him by preventing him from obtaining the benefits of [state] employment”). Furthermore, the answer to the second inquiry tends to drive the answer to the first, as “the issue of whether a violation is ‘ongoing’ [is] related to the issues of whether prospective relief is appropriate, or whether the requested relief would operate instead as an illegitimate award of retroactive damages.” Coakley, 877 F.2d at 307 n.2. Ex Parte Young separately requires an officer to have “some connection with the enforcement of the [allegedly unconstitutional] act,” 209 U.S. at 157, before he may be sued; the officer must have some “proximity to and responsibility for the challenged state action,” as opposed to mere “general authority to enforce the laws of the state.” S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008) (emphasis and brackets omitted) (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001)).
Plaintiffs easily satisfy these requirements. Although the DMV’s revocation of some Plaintiffs’ driver’s licenses took place in the past, those Plaintiffs continue to experience the harmful consequences of that action so long as their licenses remain
11
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 11 of 54

revoked. Thus, although the DMV is “no longer giving [those Plaintiffs] daily attention,” its allegedly unconstitutional license revocations “continue[] to harm” those Plaintiffs by “preventing [them] from obtaining the benefits” they would otherwise enjoy as license-holders. Coakley, 877 F.2d at 807 n.2; see also id. (“Cases from other circuits, as well as [the Fourth Circuit], suggest that few, if any, suits are barred for failure to allege an ‘ongoing violation’ . . . .”).6 And the Commissioner’s argument that he is not sufficiently connected to the enforcement of section 20-24.1(a)(2) to be a proper defendant under Ex Parte Young is based on the same mistaken argument addressed in the court’s Rooker-Feldman analysis above: that “[t]he DMV simply complies with revocation orders issued by state courts.” (Doc. 47 at 13–14.) As previously explained, North Carolina courts do not issue driver’s license revocation orders for failure to pay traffic
6 In some senses, the ongoing violation inquiry is merely another way of getting to the prospective relief inquiry. See Coakley, 877 F.2d at 307 n.2. Relief that is truly prospective does not compensate a plaintiff for past harm — it only prevents further harm. Thus, a finding that a plaintiff has requested truly prospective relief from state-caused harm in the present carries with it the connotation that the violation alleged must be “ongoing” in the sense relevant to Ex Parte Young. See Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002) (finding that a plaintiff’s “prayer for injunctive relief . . . clearly satisfies [the] straightforward inquiry” of “whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective” (internal quotation marks and brackets omitted)). In the instant case, there is no serious argument that Plaintiffs’ requested relief is not prospective.
12
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 12 of 54

violation fines and costs;7 the DMV, which the Commissioner heads, issues those revocation orders. See N.C. Gen. Stat. § 20-24.1(a); Torre Jessup: DMV Commissioner, North Carolina Department of Transportation (Feb. 5, 2019), https://www.ncdot.gov/aboutus/our-people/leadership/Pages/torre-jessup.aspx (noting that, “[a]s commissioner, Torre Jessup oversees the daily operations of the N.C. Division of Motor Vehicles, including . . . driver licenses”). As a result, the Eleventh Amendment presents no bar to Plaintiffs’ claims.8
3. Equal Protection and Substantive Due Process Turning to the merits, the Commissioner moves for judgment on the pleadings on Plaintiffs’ claim that revocation of their driver’s licenses for failure to pay fines and costs without first affirmatively determining their ability to pay violates their equal protection and substantive due process rights under the “fundamental fairness” doctrine enunciated in cases like Bearden v. Georgia, 461 U.S. 660 (1983). The Commissioner argues that the
7 The Commissioner has not persuasively explained why he would not have a sufficient connection to the enforcement of section 20-24.1(a)(2) even if he was merely enforcing revocation orders entered by state courts. However, the court need not consider that counterfactual scenario. 8 The Commissioner also argues that the complaint should be dismissed because Plaintiffs’ requested relief would not redress their injury, given the Commissioner’s alleged helplessness “to intervene” when “a state court has entered a presumptively valid revocation order.” (Doc. 47 at 15.) As previously explained, the statutory scheme at issue in this case directs the DMV, not state courts, to order license revocation. See N.C. Gen. Stat. §§ 20-24.1, 20-24.2. The Commissioner’s argument therefore fails.
13
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 13 of 54

fundamental fairness doctrine does not apply to the statutory scheme at issue in this case, which should be upheld instead under the default rational basis standard.
It has long been black-letter law that, absent the involvement of a suspect classification or fundamental right, statutes challenged under the Fourteenth Amendment’s equal protection or substantive due process guarantees are upheld so long as they have a “rational basis.” See U.S. v. Caroline Prods. Co., 304 U.S. 144, 152 & n.4 (1938); Colon Health Ctrs. Of Am., LLC v. Hazel, 733 F.3d 535, 547–48 (4th Cir. 2013). The bar for surviving rational basis scrutiny is modest; as long as there is “any reasonably conceivable state of facts that could provide a rational basis” for the enactment, the statute must be upheld. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
Nevertheless, beginning with a plurality opinion in Griffin v. Illinois, 351 U.S. 12 (1956) and running through (and beyond) a more definitive treatment in Bearden, the Supreme Court has held that “[d]ue process and equal protection principles converge” in some contexts into a constitutional requirement of “fundamental fairness” that calls for courts to make a more “careful inquiry into such factors as the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, and the existence of alternative means for effectuating the purpose.”
14
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 14 of 54

Bearden, 461 U.S. at 665–66, 673 (internal quotation marks and brackets omitted). In Bearden itself, the Court applied this inquiry to the question of whether state courts could revoke probation and incarcerate an individual for failing to pay a fine or restitution when the individual made bona fide efforts to pay but could not, ultimately holding that incarceration is “fundamentally unfair” in that context unless the state court determines there are no “alternate measures of punishment other than imprisonment . . . adequate to meet the State’s interests.” Id. at 672. The only contexts in which the Supreme Court has applied this fundamental fairness doctrine are those in which a state has deprived persons of fundamental rights because of their indigency — specifically, incarcerating them or denying them access to the courts when they cannot make a certain payment. See, e.g., Griffin, 351 U.S. 12 (access to courts); Williams v. Illinois, 399 U.S. 235 (1970) (incarceration); Tate v. Short, 401 U.S. 395 (1971) (incarceration); Bearden, 461 U.S. 660 (incarceration); M.L.B. v. S.L.J., 519 U.S. 102 (1996) (access to courts); see also Tennessee v. Lane, 541 U.S. 509, 522–23 (2004) (referring to “the right of access to the courts” as one of the “basic constitutional guarantees, infringements of which are subject to more searching judicial review”).9
9 To the extent the Court in some of these access-to-courts cases also considered the nature of the plaintiffs’ underlying interest in the
15
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 15 of 54

Plaintiffs claim that the fundamental fairness doctrine
applies to the statutory scheme at issue in this case, despite the
fact that there is no fundamental right or interest at issue,10
because Bearden in fact stands for the general principle that the
Fourteenth Amendment “prohibit[s] the punishment of indigent
people simply because of their poverty.” (Doc. 51 at 20.) This
construal of Bearden comes perilously close to an argument that
courts must apply a higher standard of scrutiny to statutory
classifications based on indigency — a principle the Supreme Court
has “repeatedly” rejected in favor of rational basis analysis.
Harris v. McRae, 448 U.S. 297, 323–24 (1980). More importantly,
Plaintiffs have not proffered a single case from the Supreme Court
or Fourth Circuit in the sixty-plus years since Griffin in which
the fundamental fairness doctrine was applied to an alleged harm
substantive issue the plaintiffs wished to address in the courts, those interests were also “fundamental.” See, e.g., Boddie v. Connecticut, 401 U.S. 371, 383 (1971) (right of access to courts is precondition of divorce, “the adjustment of a fundamental human relationship”); M.L.B., 519 U.S. at 121 (right of access to courts is necessary to allow participation in “parental status termination,” which “is irretrievably destructive of the most fundamental family relationship” (internal quotation marks and brackets omitted)). Where the underlying substantive issue did not implicate a “fundamental” interest, the court eschewed a more searching inquiry in favor of the rational basis analysis. See M.L.B., 519 U.S. at 114–15 (discussing United States v. Kras, 409 U.S. 434 (1973), and Ortwein v. Schwab, 410 U.S. 656 (1973)). 10 Although Plaintiffs stress that driver’s licenses are “crucial” or even “essential,” they do not argue that there is a fundamental right to a driver’s license. (Doc. 51 at 4, 22); see also (Doc. 35 ¶ 121 (“Plaintiffs have a substantial interest in their driver’s licenses.”)). Courts in similar cases have treated and rejected such an argument. See Mendoza, 2018 WL 6528011, at *20; Fowler, 2017 WL 6379676, at *7–8.
16
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 16 of 54

not involving fundamental rights or interests.11 See Mendoza v.
Garrett, No. 3:18-cv-01634-HZ, 2018 WL 6528011, at *19 (D. Or.
Dec. 12, 2018) (“What all of these cases teach is that the
‘fundamental fairness’ principles of due process and equal
protection originating in Griffin have been applied when either
incarceration or access to the courts, or both, is at stake.”);
Fowler, 2017 WL 6379676, at *6–7 (“None of these cases establish
. . . that it is fundamentally unfair in a constitutional sense
. . . for a state to deprive a person of a property interest —
such as a driver’s license — because of the person’s inability to
pay a fine associated with that interest.”). Notably, Bearden
itself encouraged courts to impose “alternate measures of
punishment other than imprisonment” that would “meet the State’s
interests” in ways that did not result in incarceration. 461 U.S.
at 672. Driver’s license revocation is just such an “alternate
11 To the extent Plaintiffs may have suggested at the motions hearing that Alexander v. Johnson, 742 F.2d 117 (4th Cir. 1984), is such a case, on the idea that the Fourth Circuit applied Bearden to an “attorney fee recoupment” statute, the court disagrees. The Alexander court did not expressly rely on Bearden for anything other than its holding that “an inmate violating any monetary requirement of his probation or restitution regiment cannot be imprisoned if his non-compliance results from poverty alone.” Alexander, 742 F.3d at 124; see also id. at 125–26. In their briefing, Plaintiffs’ only citation for the proposition that the fundamental fairness doctrine applies to any “imposition of adverse consequences against indigent defendants solely because of their financial circumstances” is to a “Statement of Interest” filed by the United States in Stinnie. (Doc. 51 at 21.) However, that document does not cite any case applying the fundamental fairness doctrine in any context not involving incarceration or access to courts.
17
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 17 of 54

measure.”12 In sum, contrary to Plaintiffs’ contention, the fundamental
fairness doctrine does not apply to the indigency claim here, where no fundamental right or interest is at stake. This leaves the court to apply rational basis analysis, and section 20-24.1 easily evinces the “constitutionally minimal level of rationality” required. Van Der Linde Housing, Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290, 295 (4th Cir. 2007). Revocation of driver’s licenses for failure to pay traffic violation fines or costs serves, in the Commissioner’s words, to “impos[e] a motivation to accomplish what an individual might otherwise be disinclined to do” — here, to pay the fines and costs properly imposed on traffic defendants.13 (Doc. 47 at 20.) There is no argument that collection of monetary exactions is not a legitimate state interest. Instead, Plaintiffs argue that the DMV sweeps too broadly: that revoking the licenses of all traffic defendants who don’t pay their fines and costs irrationally results in the revocation of the licenses of some who cannot pay, and to whom any
12 As discussed in more detail herein, North Carolina’s statutory scheme also includes an express procedure by which traffic defendants can avoid or undo license revocation for failure to pay a fine or cost if they show that their failure to pay was not “willful” and that they are making a “good faith effort to pay.” N.C. Gen. Stat. 20-24.1(b)(4), (b1). 13 To reiterate, Plaintiffs expressly do not argue that the fines and costs were improperly imposed on them in the first place, only that the DMV should not revoke their driver’s licenses for failure to pay those fines and costs without first determining that they are able to pay.
18
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 18 of 54

additional incentive to pay is ineffective.14 But the rational basis test does not require laws to be narrowly tailored to accomplish the State’s ends. See Van Der Linde, 507 F.3d at 295 (“The ‘rational’ aspect of rational basis review . . . is not an invitation to scrutinize . . . the instrumental rationality of the chosen means (i.e., whether the classification is the best one suited to accomplish the desired result).”). “Neither may a policy’s rationality be judged on the basis of its wisdom, fairness, or logic (or lack thereof).” Id. at 293–94. Since there is a “reasonably conceivable state of facts,” Beach, 508 U.S. at 313, under which section 20-24.1(a)(2) provides some traffic defendants with an efficacious incentive to pay fines and costs, the law survives rational basis review.
Because the fundamental fairness doctrine does not apply and section 20-24.1 has a rational basis, Plaintiffs have not plausibly alleged an equal protection and substantive due process claim. Accordingly, the court will grant the Commissioner judgment on the pleadings as to that claim. The Commissioner presented no merits argument for judgment on the pleadings as to Plaintiffs’ procedural due process claims, however, and for that reason those claims
14 Indeed, as Plaintiffs point out, revocation of a person’s driver’s license may in some cases do more harm than good to the State’s cause, given that losing the ability to drive can negatively impact a person’s ability to earn money with which to pay their fines and costs.
19
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 19 of 54

survive at this time.15
B. Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel
Plaintiffs move to certify two classes under Federal Rule of
Civil Procedure 23(a) and (b)(2): the “Revoked Class,” composed of
everyone whose driver’s license has been revoked by the DMV for
failure to pay a traffic violation fine or cost, and the “Future
Revocation Class,” composed of everyone whose driver’s license
will be so revoked in the future. Plaintiffs also move for
appointment of class counsel under Rule 23(g). The Commissioner
opposes certification, challenging whether several of the
prerequisites to certification have been met.
To be certified, a putative class must first satisfy the four
15 At the motions hearing, the Commissioner initially represented that he had moved for judgment on the pleadings on the merits as to Plaintiffs’ procedural due process claims. When pressed by the court to identify where such an argument was made, counsel eventually admitted that the Commissioner’s brief “do[es] not use the word procedural due process.” While one sentence in the Commissioner’s “Statement of the Case” does allege generally that section 20-24.1’s “procedural protections . . . afford the Plaintiffs sufficient due process” (Doc. 47 at 3), this solitary statement falls well short of the court’s requirement that “[o]pening briefs filed with the Court shall contain . . . argument, which shall refer to all statues, rules, and authorities relied upon.” Local Rule 7.2(a). Plaintiffs’ responsive brief reflects a reasonable understanding that such an argument was not made. (Doc. 51 at 20 n.4.) Allowing the Commissioner to raise a merits argument for dismissal of Plaintiffs’ procedural due process claims for the first time at the motions hearing would have “undermine[d] the purpose of orderly briefing and risk[ed] subjecting an opponent to an unfair disadvantage.” N.C. Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 713 F. Supp. 2d 491, 510 (M.D.N.C. 2010); see Lucas v. Henrico Cty. Sch. Bd., 822 F. Supp. 2d 589, 600 n.10 (E.D. Va. 2011) (declining to address a basis for dismissal “because it first arose during oral argument, because [the other party] has not had a full and fair opportunity to respond, and because the Court lacks the benefit of full briefing on the subject”).
20
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 20 of 54

requirements set out in Rule 23(a): “(1) numerosity of parties; (2) commonality of factual and legal issues; (3) typicality of claims and defenses of class representatives; and (4) adequacy of representation.” Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003). Next, the putative class must show that it is one of the three types of classes described in Rule 23(b). Here, Plaintiffs assert that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Nevertheless, district courts retain “broad discretion” in deciding whether a class should be certified and how that class should be defined. Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976). “Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). Otherwise, “[a]n evaluation of the probable outcome on the merits is not properly

part of the certification decision.”

Id. (quoting 2003

Advisory Committee Note on Rule 23(c)(1)).

The Commissioner does not contest the adequacy of

representation or the putative class’s Rule 23(b)(2)

categorization, and the court independently finds that these 21

Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 21 of 54

requirements are met. The named Plaintiffs do not appear to have

interests that conflict with those of the class and have each

explained their commitment to the litigation. See (Docs. 4, 5,

40, 41, 63). While Plaintiff Smoot appears to have paid her

traffic fines and costs, Plaintiff Yarborough has not and can

adequately represent the proposed Revoked Class. Plaintiffs’

counsel are adequate under Rule 23(a)(4) for the same reasons they

satisfy the Rule 23(g) standard, as discussed below. Finally,

Rule 23(b)(2) — which “was created to facilitate civil rights class

actions,” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311,

330 n.24 (4th Cir. 2006) — is satisfied because Plaintiffs seek

injunctive and declaratory relief and challenge the Commissioner’s

class-wide enforcement of section 20-24.1(a)(2).

The Commissioner contests numerosity, commonality, and

typicality. Each will be addressed in turn.

1. Numerosity

“There is no mechanical test for determining whether” the

number of potential plaintiffs in a given action is sufficient to

meet Rule 23(a)(1)’s requirement that joinder would be

“impracticable.” Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35

(4th Cir. 1978) (per curiam).

Instead, the numerosity

determination “depends on the particular facts of each case.” 7A

Charles Alan Wright et al., Federal Practice and Procedure § 1762

(3d ed. 2018) (also noting that “no arbitrary rules regarding the

22

Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 22 of 54

size of classes have been established by the courts”). The Fourth Circuit has previously certified classes of as few as eighteen plaintiffs. See Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967); see also Dameron v. Sinai Hosp. of Baltimore, Inc., 595 F. Supp. 1404, 1408 (D. Md. 1984) (“A class consisting of as few as 25 to 30 members raises the presumption that joinder would be impractical.”).
In this case, the Commissioner’s argument is not so much that any specific number advanced by Plaintiffs is insufficient, but that Plaintiffs’ numerosity evidence is too speculative. This argument attacks Plaintiffs’ reliance in their opening brief on a September 26, 2017 email from a DMV employee stating that “[t]he total number of Failure to Pay is 436,050” (Doc. 6-9), on the basis that the email “does not explain the time frame of these suspensions, or even if the [number] is referring to individuals” (Doc. 48 at 7). The Commissioner goes on to criticize Plaintiffs for omitting any evidence concerning how many of these failureto-pay license revocations involve traffic defendants who “are low income individuals.” (Id.)
The Commissioner’s concerns, however, are allayed by his own evidence. On March 13, 2019, the Commissioner filed the affidavit of a North Carolina Department of Transportation employee stating that in the three years prior to the lawsuit’s initiation, 62,788 traffic defendants failed to pay their traffic violation fines and
23
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 23 of 54

costs and have therefore had their driver’s licenses revoked.16

(Doc. 62.) This evidence is confined to a relevant timeframe and

clearly refers to individual traffic defendants.

The

Commissioner’s protest that Plaintiffs have not supported their

“allegation that the proposed Revoked Class members are low income

individuals” (Doc. 48 at 7) is an attack on a straw man; Plaintiffs

have never made such an allegation. Plaintiffs’ proposed classes

consist of “all individuals” whose driver’s licenses have been or

will be revoked under section 20-24.1(a)(2). Even looking only to

the Commissioner’s evidence, then, Plaintiffs’ proposed Revoked

Class consists of at least 62,788 individuals. As to the proposed

Future Revocation Class, the court may reasonably infer from the

size of the Revoked Class that it too is large. See 1 William B.

Rubenstein, Newberg on Class Actions § 3:13 (5th ed. 2018) (courts

may use available evidence to “make commonsense assumptions

regarding the number of putative class members”). This evidence

is sufficient to show that Rule 23(a)(1)’s numerosity requirement

is met.

2. Commonality

Rule 23(a)(2) “requires the plaintiff[s] to demonstrate that

the class members have suffered the same injury” in the sense that

16 Another 67,809 traffic defendants eventually paid their fines and costs at some point after their license had already been revoked; 55,336 traffic defendants received a revocation order but paid their fines and costs within the 60-day period before the revocation went into effect. (Doc. 62.)
24

Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 24 of 54

“[t]heir claims . . . depend upon a common contention,” the

determination of which “will resolve an issue that is central to

the validity of each one of the claims.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 350 (2011). “[T]his provision does not

require that all the questions of law and fact raised by the

dispute be common,” just that any “dissimilarities between the

claims [do not] impede a common resolution.” Wright et al., supra,

§ 1763.

The Commissioner does not address the seven common questions

of law and fact listed in Plaintiffs’ opening brief;17 instead, he

argues that the proposed class members have not “suffered the same

injury” as Plaintiffs:

Plaintiffs’ [sic] complain that without a driver’s

license, they are forced to choose between going to work,

getting food for the family, attending medical

appointments, driving their kids to school, or driving

on a revoked license.

While the Plaintiffs’

Declarations may provide evidence of their injuries,

they do not provide evidence that any number of other

people are facing the same injuries.

(Doc. 48 at 17–18 (citation and emphasis omitted).) Once again,

the Commissioner misunderstands Plaintiffs’ claims. The core

injury Plaintiffs assert is the allegedly unconstitutional

deprivation of their driver’s licenses under section 20-24.1, not

the practical effects of this revocation on their personal lives.

17 One or two of these questions are rendered irrelevant by the court’s dismissal of Plaintiffs’ equal protection and substantive due process claim. The rest remain relevant.
25

Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 25 of 54

While Plaintiffs do provide a litany of additional allegations regarding the personal hardships attendant to license revocation in what may be an attempt to underscore the seriousness and sympathetic nature of their claims, these additional allegations are not the constitutional injury Plaintiffs assert. In the court’s view, the DMV’s enforcement of section 20-24.1 against the named Plaintiffs and proposed class members provides sufficient common questions of fact and law on which to sustain a constitutional class action.
3. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” “The essence of the typicality requirement is captured by the notion that ‘as goes the claim of the named plaintiff, so go the claims of the class.’” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (quoting Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)). In order to determine whether a named plaintiff’s “claims or defenses” are typical of those of the proposed class, the court will frequently have to undertake some investigation of “the merits of the plaintiff’s underlying claim.” Dukes, 564 U.S. at 351. The Commissioner offers four reasons that the court should decline to find the named Plaintiffs’ claims typical of the proposed classes.
26
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 26 of 54

First, as in the commonality context, the Commissioner argues that Plaintiffs have not shown that the proposed class members are similarly low-income. (Doc. 48 at 11.) As the court pointed out in that context, the constitutional violations Plaintiffs assert are not dependent on whether a given traffic defendant would be able to successfully show inability to pay at an ability-to-pay hearing. It is the alleged lack of notice and a hearing prior to revocation that forms the basis of Plaintiffs’ procedural due process claims. See Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915) (“To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.”).
Second, the Commissioner argues that “the relief sought by Plaintiffs would require an individualized inquiry into [each] driver’s eligibility for reinstatement” (Doc. 48 at 12), the idea being that the driver’s licenses of some class members may be revoked on additional bases. Although objections about the contours of any potential relief are more relevant to the Rule 23(b)(2) analysis than to typicality, compare Fed. R. Civ. P. 23(b)(2) (parties must show that “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole”) with Fed. R. Civ. P. 23(a)(3) (parties must show that their “claims or defenses” are typical of the class),
27
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 27 of 54

the Commissioner’s concern is illusory in any context. As Plaintiffs point out, if the court ultimately finds that the DMV’s enforcement of section 20-24.1(a)(2) is and has been unconstitutional, the court can order the DMV to annul all revocations within the class that were entered pursuant to that provision. It would remain for the DMV, not the court, to investigate whether a given license should remain revoked on some other basis or whether the license should be reinstated pending provision of sufficient due process.
Third, the Commissioner argues that some proposed class members may have received the ability-to-pay hearing that the named Plaintiffs did not. (Doc. 48 at 13.) Although this factual distinction, if it exists, might have created problems for the typicality of an as-applied challenge, Plaintiffs clarify that they “bring a facial challenge to Sections 20-24.1 and 20-24.2.” (Doc. 50 at 10.) To the extent that the Commissioner may have understood Plaintiffs’ procedural due process claims to be asapplied, Plaintiffs’ clarification assuages his typicality concern.
Fourth, and finally, the Commissioner argues that the claims of some proposed Revoked Class members will be subject to a statute of limitations defense that the claims of the named Plaintiffs do not typify. (Doc. 48 at 11.) The Commissioner argues — and Plaintiffs do not contest — that the relevant statute of
28
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 28 of 54

limitations is three years. See N.C. Gen. Stat. § 1-52(5); Love v. Alamance Cty. Bd. of Educ., 757 F.2d 1504, 1506 & n.2 (4th Cir. 1985) (three-year statute of limitations applicable to 42 U.S.C. § 1983 actions in North Carolina); Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1162 (4th Cir. 1991). Since Plaintiffs claim that the Constitution requires pre-deprivation notice and an ability-to-pay hearing before a driver’s license may be revoked under section 20-24.1(a)(2), and since the DMV notifies traffic defendants of the day that the revocation order will go into effect, each Plaintiff’s claim accrued at least by the day that the DMV’s revocation order became effective. See Ocean Acres Ltd. P’ship v. Dare Cty. Bd. of Health, 707 F.2d 103, 107 (4th Cir. 1983) (“[Plaintiff’s] due process claims accrued when plaintiff knew of or had reason to know of the alleged injury which is the basis of its action.”). Thus, the Commissioner argues, proposed Revoked Class members whose driver’s licenses were revoked more than three years prior to the filing of this action will be subject to a statute of limitations defense not applicable to any of the named Plaintiffs.
Plaintiffs respond by invoking the “continuing violation doctrine, which provides that the statute of limitations may be tolled by a continuing unlawful . . . practice.” Hall v. City of Clarksburg, No. 1:14CV90, 2016 WL 5680218, at *4 (N.D. W. Va. Sept. 30, 2016). In Plaintiffs’ view, the fact that their licenses
29
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 29 of 54

remain revoked indefinitely means that the statute of limitations is also tolled indefinitely.
While Plaintiffs’ view is not without superficial support, see Va. Hosp. Ass’n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989) (“[T]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations.”), the Fourth Circuit has clarified that “[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation,” Raleigh, 947 F.2d at 1166 (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). In the context of the enforcement of allegedly unconstitutional laws, the question is whether the particular enforcement challenged “is a single act,” in which case “the statute begins to run at the time of the act,” or whether the enforcement “does not occur at a single moment but in a series of separate acts,” in which case “the limitations period begins anew with each violation.” Id. at 1167 (quoting Perez v. Laredo Junior Coll., 706 F.2d 731, 733 (5th Cir. 1983)). In the instant case, the DMV’s revocation of driver’s licenses is a “single act” — the fact that licenses remain revoked thereafter does not evince “a series of separate acts” in which the DMV revokes the driver’s licenses anew each day.18 See id. (“The
18 Plaintiffs argue that the DMV’s website, which reminds traffic defendants that their driver’s licenses will remain revoked “indefinitely until [they] have complied with [their] case,” shows that the Commissioner “is continuing to enforce th[e] illegal statute” against them. (Doc. 50 at 8 & n.3.) A notice of this type is “not a new wrongful
30
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 30 of 54

restriction on use . . . occurred upon enactment of the ordinance.
No City action since then has added to [the plaintiff’s] alleged
injury.”). As a result, it does not appear that the continuing
violation doctrine would save the claims of proposed Revoked Class
members whose licenses were revoked more than three years prior to
filing.19 This is a problem for typicality. See Kirkman v. N.C.
R.R. Co., 220 F.R.D. 49, 53 (M.D.N.C. 2004).
Nevertheless, as Plaintiffs indicate, there is little reason
why a solitary typicality issue applicable to an easily-
identifiable and excludable group of proposed class members should
preclude certification altogether. Instead, the court will simply
exercise its discretion to define the proposed Revoked Class to
include only those proposed class members within the three-year
limitations period: those drivers whose licenses were revoked on
act, but merely a reminder of the restriction” imposed at the time of the original alleged violation. Raleigh, 947 F.2d at 1167. Since the DMV’s website is not “add[ing] to [Plaintiffs’] alleged injury,” each time they view it, it does not evince continuing “separate acts” sufficient to invoke the continuing violation doctrine. Id. 19 At first glance, the court’s conclusion that there is no “continuing violation” in the statute of limitations context may appear in tension with its earlier conclusion that there is an “ongoing violation” for purposes of the Ex Parte Young analysis. See Part II.A.2, supra. But the similarity of these shorthand terms belies a fundamental difference in the underlying doctrines: the “continuing violation” exception to statutes of limitations “is occasioned by continual unlawful acts, not continual ill effects from an original violation,” Raleigh, 947 F.2d at 1166, whereas the “ongoing violation” requirement of Ex Parte Young is satisfied by “presently experienced harmful consequences of past conduct.” Allen, 134 F.3d at 628.
31
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 31 of 54

or after May 30, 2015.20 See Roman, 550 F.2d at 1348 (noting the
district court’s broad discretion in how to define a class).
4. Certification
Having resolved the Commissioner’s objections, and upon its
own investigation of the requirements of Rule 23(a) and (b)(2),
the court finds that class certification is warranted. The court
will therefore certify the following two classes:
Revoked Class: All individuals whose driver’s licenses were revoked by the DMV on or after May 30, 2015, due to their failure to pay fines, penalties, or court costs assessed by a court for a traffic offense, and whose driver’s licenses remain so revoked.21
Future Revocation Class: All individuals whose driver’s licenses will be revoked in the future by the DMV due to their failure to pay fines, penalties, or court costs assessed by a court for a traffic offense.
As noted, the court’s certification of these classes is without
determination of the ultimate merits of Plaintiffs’ remaining
claims.
20 The Commissioner suggests that the cut-off date should be three years prior to the filing of the amended complaint. (Doc. 47 at 22.) But since the amended complaint asserts claims arising out of the conduct set out in the original complaint, the amended complaint relates back to the original complaint. Fed. R. Civ. P. 15(c)(1)(B). 21 Although Plaintiffs’ proposed class is not expressly limited to those individuals whose licenses remain revoked, Plaintiffs’ admission at the hearing that Smoot’s claims have been mooted by her successful payment of her traffic fines and fees evinces such an understanding. Moreover, Plaintiffs have not explained how drivers whose licenses have been reinstated would be victims of any “ongoing violation” under Ex Parte Young.
32
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 32 of 54

5. Appointment of Class Counsel

Plaintiffs also move for appointment of class counsel under

Rule 23(g), which requires that the court consider the following:

(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class[.]

Fed. R. Civ. P. 23(g)(1)(A). In sum, “[c]lass counsel must fairly

and adequately represent the interests of the class.” Fed. R.

Civ. P. 23(g)(4).

Plaintiffs are represented by Samuel Brooke, Kristi Graunke,

Danielle Davis, and Emily Early of the Southern Poverty Law Center

(“SPLC”); Christopher Brook, Cristina Becker, and Sneha Shah of

the North Carolina ACLU (“NC-ACLU”); Nusrat Choudhury and R. Orion

Danjuma of the national ACLU (“ACLU”); and Jeffery Loperfido of

the Southern Coalition for Social Justice (“SCSJ”). Plaintiffs

have filed the declaration of Samuel Brooke, in which he summarizes

the extensive civil rights and class action experience and

accomplishments of these attorneys and their organizations.22

(Doc. 6.)

Defendants have not disputed Plaintiffs’

characterization of their attorneys as experienced, knowledgeable,

22 Brooke does not discuss Loperfido’s qualifications, since he joined the case at a later date. (Doc. 42.) However, the court is familiar with the SCSJ from prior litigation, and Loperfido’s appointment to the large team of proposed class counsel is not opposed.
33
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 33 of 54

and capable of investing sufficient resources into this case.
The court has reviewed the requirements of Rule 23(g) and
concludes that Plaintiffs’ proposed class counsel are well
qualified to represent the two classes in this case. Accordingly,
Plaintiffs’ SPLC, NC-ACLU, ACLU, and SCSJ counsel will be appointed
class counsel.
C. Plaintiffs’ Motion for Preliminary Injunction
Finally, Plaintiffs move for preliminary injunction pursuant
to Federal Rule of Civil Procedure 65:23
(1) to enjoin Section 20-24.1(a)(2) and (b)(3)–(4); (2) to bar the DMV from revoking licenses for non-payment under Section 20-24.1(a)(2); and (3) to lift current license revocations entered under Section 20-24.1(a)(2) and reinstate those licenses without charging a reinstatement fee if there are no other bases for the revocation — pending the ultimate determination of the merits of Plaintiffs’ claims.
(Doc. 39 at 8.) The Commissioner opposes the motion primarily on
the ground that Plaintiffs are not likely to succeed on the
merits.24
23 At the motions hearing, Plaintiffs expressed a desire for “a simultaneous ruling on both the motion for preliminary injunction and the motion for class certification” such that the court’s ruling on the motion for preliminary injunction would apply class-wide. 24 The Commissioner uses the terms “temporary restraining order” and “preliminary injunction” interchangeably throughout his response brief, including an argument that Plaintiffs’ “motion for a preliminary injunction should be denied” because “reinstatement of Plaintiff[s’] licenses would go well beyond the intended purpose of temporary restraining orders under [Federal Rule of Civil Procedure] 65(b).” (Doc. 45 at 9.) Plaintiffs have not moved for a temporary restraining order, nor is Rule 65(b) relevant to their preliminary injunction motion.
34
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 34 of 54

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). It is not enough for a plaintiff to satisfy some factors but not others; “each preliminary injunction factor [must] be satisfied as articulated.” Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (internal quotation marks omitted); Mountain Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship, ___ F.3d ___, 2019 WL 1140648, at *5 (4th Cir. Mar. 13, 2019). As to the first factor, “plaintiffs need not show a certainty of success,” but must “make a clear showing that they are likely to succeed at trial.” Pashby, 709 F.3d at 321 (internal quotation marks omitted). Because the court has determined that Plaintiffs’ equal protection and substantive due process claim should be dismissed pursuant to the Commissioner’s motion for judgment on the pleadings, only Plaintiffs’ claims asserting a violation of procedural due process are considered here.
1. Likelihood of Success on the Merits a. Opportunity to be Heard
Plaintiffs argue that due process requires the DMV to hold an ability-to-pay hearing in every case prior to revoking a traffic defendant’s driver’s license under section 20-24.1(a)(2). The
35
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 35 of 54

Commissioner argues that no such hearing is required. “Procedural due process imposes constraints on governmental
decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (internal quotation marks omitted). An individual’s property interest in his or her driver’s license is protected by the Due Process Clause. See Bell v. Burson, 402 U.S. 535, 539 (1971) (“Once licenses are issued . . . [they] are not to be taken away without that procedural due process required by the Fourteenth Amendment.). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The question of what form of hearing is required — including the “question . . . of timing,” Dixon v. Love, 431 U.S. 105, 112 (1977) — is addressed through consideration of the following three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335. In the instant case, the statute provides that traffic
36
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 36 of 54

defendants may “demonstrate[] to the court that [their] failure to pay the penalty, fine, or costs was not willful and that [they are] making a good faith effort to pay or that the penalty, fine, or costs should be remitted.” N.C. Gen. Stat. § 20-24.1(b)(4). If a traffic defendant makes such a demonstration, the court notifies the DMV, which “shall . . . delete[]” any pending revocation order or “restore the person’s license” if revocation has already become effective. Id. § 20-24.1(b), (c). The statute also lays out a procedure for making this determination: “Upon motion of a defendant, the court must order that a hearing or trial be heard within a reasonable time. Id. § 20-24.1(b1).
In Plaintiffs’ view, this procedure is insufficient because it requires traffic defendants to move for hearing, rather than affirmatively mandating that a pre-revocation hearing actually be held in every case. In order to evaluate Plaintiffs’ claims that section 20-24.1 fails to provide traffic defendants with due process, the court must determine what process is due.
As to the first Mathews factor — the private interest at stake — the Supreme Court has previously held that a “driver’s interest . . . in continued possession and use of his license . . . is a substantial one.” Mackey v. Montrym, 443 U.S. 1, 11 (1979). And the court has no reason to doubt Plaintiffs’ contention that, for many North Carolinians, the loss of a driver’s license negatively impacts individuals’ ability to get to work, make doctor’s
37
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 37 of 54

appointments, go grocery shopping, and more. Nevertheless, “the Court has expressly held that the
[private] interest [in a driver’s license] is not so great as to require departure from the principle that an evidentiary hearing is not ordinarily required prior to adverse administrative action.” Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228, 1235 (4th Cir. 1985) (citing Dixon, 431 U.S. at 113). Moreover, the Supreme Court has stated that courts should consider “[t]he duration of any potentially wrongful deprivation of a property interest” insofar as it relates to the “timeliness of the postsuspension review available to a suspended driver,” and that this consideration “is an important factor in assessing the impact of official action on the private interest involved.” Mackey, 443 U.S. at 12 (emphasis added); see also Fusari v. Steinberg, 419 U.S. 379, 389 (1975). In the present case, the fact that section 20-24.1(b1) guarantees traffic defendants the opportunity to have a hearing “within a reasonable time” of moving for one lessens “the impact of official action” on Plaintiffs’ interests.25 Mackey, 443 U.S. at 12.
In sum, while the court certainly “do[es] not disparage the
25 As discussed in footnote 33, infra, Plaintiffs have not provided the court with any way to determine how long “a reasonable time” under section 20-24.1(b1) might be in this context. Since Plaintiffs bear the burden at the preliminary injunction stage of showing they are likely to succeed on the merits, the court will not count this uncertainty in their favor.
38
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 38 of 54

importance of a driver’s license” to Plaintiffs, and indeed recognizes the hardships often attendant to the loss of a driver’s license, these considerations do not serve to overcome binding precedent holding that the private interest in driver’s licenses is insufficient to mandate a pre-revocation evidentiary hearing. Tomai-Minogue, 770 F.2d at 1235.
The second Mathews factor is “the risk of an erroneous deprivation of [Plaintiffs’] interest[s] through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” 424 U.S. at 335. In this case, the threshold inquiry is whether the revocation of a traffic defendant’s driver’s license for failure to pay a fine or cost the traffic defendant was unable to pay is in fact “an erroneous deprivation” under Mathews. Given that there is no equal protection or substantive due process right not to have one’s driver’s license revoked for failure to pay without an abilityto-pay determination, the DMV’s revocations cannot be “erroneous” in that regard. See Mendoza, 2018 WL 6528011, at *25 (finding “little risk of erroneous deprivation” where plaintiffs argued that license revocation without an ability-to-pay determination violated their “fundamental . . . constitutional right to an indigency determination,” given the court’s conclusion that there is no such right under equal protection or substantive due process).
39
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 39 of 54

The more difficult question is whether the North Carolina legislature’s decision to include a provision allowing traffic defendants to avoid or undo license revocation by showing that their “failure to pay . . . was not willful and that [they are] making a good faith effort to pay,” N.C. Gen. Stat. § 2024.1(b)(4), shows that the legislature did not intend license revocation to take place when traffic defendants could not pay, thus making such revocations “erroneous deprivations” under Mathews. Plaintiffs argue that the answer must be yes under Bell v. Burson, 402 U.S. 535 (1971), in which the Supreme Court found that Georgia could not deny pre-revocation “consideration of an element essential [under the statutory scheme] to the decision whether licenses . . . shall be suspended.” Id. at 542. The statutory scheme at issue in Bell required uninsured drivers involved in traffic accidents to “post[] security to cover the amount of damages claimed by aggrieved parties in reports of the accident” or else face license suspension. Id. at 536. It also allowed drivers to avoid or undo license suspension if, “prior to” or “after suspension has been declared, [there is] a release from liability or an adjudication of non-liability” for the accident. Id. at 541. “Since the statutory scheme makes liability an important factor in the State’s determination to deprive an individual of his license[],” wrote the Bell Court, “the State may not, consistently with due process, eliminate consideration of
40
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 40 of 54

that factor in its prior hearing.”26 Id.; see also Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003) (“Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme.”).
The Commissioner responds that the better analogue on this factor is Dixon v. Love, 431 U.S. 105 (1977), in which the Supreme Court found that there was little risk of erroneous deprivation absent a pre-deprivation hearing where Illinois suspended driver’s licenses for accumulation of too many “points” assigned for traffic violations. Id. at 107–08, 113–14. Crucial to the Dixon Court’s treatment of this Mathews factor, however, was that the driver’s only potential argument at his requested hearing would be a dubious plea for the Secretary of State to “depart from his own regulations” and “show leniency.”27 Id. at 114. There was no assertion in Dixon that Illinois had intended a “leniency” determination to be relevant at all to license revocation, much less made it “an important factor in the State’s determination to deprive an individual of his license[],” Bell, 402 U.S. at 541.28
26 Georgia already provided a hearing under the statutory scheme at issue in Bell, but it “exclude[d] consideration of the motorist’s fault or liability for the accident” at that hearing. 402 U.S. at 536. 27 As to the possibility of “clerical error,” the Dixon Court found that “written objection” sufficed to “bring a matter of that kind to the Secretary’s attention.” 431 U.S. at 113. 28 In a footnote, Dixon briefly discussed a slightly more analogous
41
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 41 of 54

As a result, Dixon’s “erroneous deprivation” analysis does not preclude Bell’s relevance to a case, like this one, where Plaintiffs do cite a clear statutory basis for the issue they wish to address at a hearing. Applying Bell, the court finds that ability to pay is “an important factor” in North Carolina’s statutory scheme much as accident liability was in the Georgia statutory scheme at issue in Bell. In both cases, the statute allows drivers to utilize the exception to revocation both “prior to” or “after” revocation takes place. Bell, 402 U.S. at 541; see N.C. Gen. Stat. § 20-24.1(b), (c). In both cases, the “important” nature of the relevant exception is shown through the statutory mandate that “no suspension [be] worked” under its provisions if the exception is satisfied. Bell, 402 U.S. at 541; see N.C. Gen. Stat. § 20-24.1(b), (c). In sum, because section 20-24.1 makes inability to pay an express exception to revocation, the revocation of a driver’s license under that statute despite inability to pay would constitute an “erroneous deprivation” under Mathews. Bell, 402 U.S. at 541;29 see Doe, 538 U.S. at 8.
“erroneous deprivation” argument: that revoking a driver’s license when the driver qualified for a “restricted permit” under a statutory “hardship exception[]” would be an “erroneous deprivation.” 431 U.S. at 114 n.10. However, the Court found that such a revocation would not be erroneous because the Illinois statute manifestly “contemplate[d] relief only after the initial decision to suspend or revoke is made.” Id. (emphasis added). This reasoning does not apply in the instant case because the statute plainly contemplates relief both before and after revocation. Compare N.C. Gen. Stat. § 20-24.1(b) with id. § 20-24.1(c). 29 Bell did not use the phrase “erroneous deprivation,” which was coined in Mathews five years later as part of the establishment of a more
42
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 42 of 54

Nevertheless, the question of whether such revocations are actually erroneous is only the threshold inquiry under the second Mathews factor. Having made this determination, the court must now consider the extent to which the statutory procedures (or lack thereof) increase or mitigate the “risk” of those erroneous deprivations. Mathews, 424 U.S. at 335. It is here that Plaintiffs falter, as they have not persuasively argued that the hearing already provided for by section 20-24.1(b1) fails to substantially alleviate the risk of erroneous deprivations. Plaintiffs only address this crucial opportunity for a hearing once in their briefing on this issue, and their sole reference is to say that “[r]elief from indefinite license revocation is . . . conditioned on the individual knowing about, and affirmatively seeking, a hearing on ability to pay, which is entirely undermined by the insufficient notice the DMV sends the driver.” (Doc. 39 at 23.) This is a conflation of issues, as there is a separate standard applicable to the issue of whether the State has provided sufficient notice of the opportunity for a hearing under the Due Process Clause. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (requiring “notice reasonably calculated, under all the circumstances, to apprise interested parties of the
comprehensive procedural due process test. While Mathews and later cases “represent[] some shift from the approach earlier followed by the Court in Bell,” Tomai-Minogue, 770 F.2d at 1235, the Supreme Court has repeated Bell’s reasoning on this specific point well into the Mathews era. See Doe, 538 U.S. at 8.
43
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 43 of 54

pendency of the action and afford them an opportunity to present their objections”).
This same conflation of issues appears to be what undergirds Plaintiffs’ general theory that the State must affirmatively hold an ability-to-pay hearing before revocation in every case whether or not the particular traffic defendant wants it. At the hearing, Plaintiffs’ counsel argued that the section 20-24.1(b1) hearing was insufficient under due process because traffic defendants “don’t know about it” and “don’t realize they can” get an abilityto-pay hearing if they ask for one. Again, this argument does not relate to whether section 20-24.1 provides an opportunity for a hearing, but rather whether the State has provided the “notice required by the Due Process Clause . . . to ensure that the opportunity for a hearing is meaningful.” City of West Covina v. Perkins, 525 U.S. 234, 240 (1999) (emphasis added). Indeed, holding notice constant, Plaintiffs would be no better off under their own reasoning if North Carolina mandated ability-to-pay hearings in every case prior to revocation, since traffic defendants would still not “know about it.”
To be sure, the notice requirement of due process is “obviously a vital corollary to . . . the right to be heard.” Schroeder v. City of New York, 371 U.S. 208, 212 (1962). The court will fully address Plaintiffs’ notice arguments on their merits below, in the context of Plaintiffs’ separately-pleaded notice
44
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 44 of 54

claim.30 But as to the issue whether the section 20-24.1(b1)
hearing itself is sufficient to address the risk of erroneous
deprivations, Plaintiffs’ arguments as to this Mathews factor
provide little basis for their theory that North Carolina must
actually hold an ability-to-pay hearing in every case. In cases
in which the Due Process Clause has been found to require pre-
revocation process before a person is deprived of a property
interest, it has generally been found to require only that an
“opportunity for [a] hearing” be provided, Mullane, 339 U.S. at
313, not that a hearing be actually held in every case.31 In fact,
although Plaintiffs cite a three-judge panel decision of this
district as allegedly “affirming [a] statute requiring [a] hearing
before suspension” (Doc. 39 at 23), that case actually states that
the Due Process Clause requires only that the State hold a hearing
for licensees who ask for one: “[I]f the state provides upon
request [a hearing] at which the licensee has a fair opportunity
30 Even if the court were to consider the adequacy of the notice provided to traffic defendants as part of the “opportunity to be heard” inquiry, it would find that notice sufficient for the same reasons explained in part II.C.1.b. of this opinion. 31 To the extent that Bell could be read otherwise, the Fourth Circuit has stated that “[t]he Mathews test, as adopted in Dixon for driver’s license deprivation claims, represents some shift from the approach earlier followed by the Court in Bell, which mandated a pre-deprivation hearing.” Tomai-Minogue, 770 F.2d at 1235. Moreover, the Bell Court had no cause to distinguish between holding pre-deprivation hearings in every case and providing a pre-deprivation opportunity for a hearing, since the State in Bell was already holding pre-deprivation hearings in every case. The problem in Bell was that drivers were disallowed from addressing a statutorily material issue at that pre-deprivation hearing.
45
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 45 of 54

to [make his case], then due process will surely have been
satisfied.” Jones v. Penny, 387 F. Supp. 383, 395 (M.D.N.C. 1974);
see also Mackey, 443 U.S. at 18 (equating giving drivers “[a]
presuspension hearing” with giving drivers the ability to “demand
a presuspension hearing”). And Plaintiffs make no argument that
the actual manner in which a section 20-24.1(b1) hearing is
conducted is deficient in some way — indeed they cannot, since no
named Plaintiff has invoked his or her section 20-24.1(b1) right
to a hearing.32
In sum, the court finds that section 20-24.1(b1)’s mandate
that traffic defendants be provided a hearing “within a reasonable
time” of moving for one substantially alleviates, and may very
well eliminate, the risk of erroneous deprivations under the
statute.33 As a result, the second Mathews factor does not command
32 While Plaintiffs’ counsel represented at the motions hearing that Bonhomme-Dicks told the state court at her initial traffic appearance that she was unable to pay, this exchange appears to have taken place prior to any fine or costs being imposed in the first place. As a result, the state court appears to have interpreted it as a challenge to the imposition of a fine or costs as punishment for the traffic offense, concluding that it would not impose a fine but would impose costs. As Plaintiffs stress elsewhere, they do not challenge the original imposition of fines or costs for traffic violations; they challenge only the license revocations for a subsequent failure to pay those fines or costs. It does not appear that Bonhomme-Dicks exercised her statutory right to move after the imposition of costs for a section 20-24.1(b1) hearing to show that her subsequent “failure to pay . . . was not willful” and that she was “making a good faith effort to pay,” N.C. Gen. Stat. 20-24.1(b)(4).
33 To the extent Plaintiffs contend that the “reasonable time” allowed for in the statute would not always guarantee the movant a hearing prior to the deprivation, they have given the court no reason to think that it does not. Traffic defendants are given 40 extra days to pay their
46
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 46 of 54

that additional process be required under the Due Process Clause.
As to the third and final Mathews factor — the governmental
interest at stake — the Supreme Court has specifically recognized
in the driver’s license revocation context that “the substantial
public interest in administrative efficiency would be impeded by
the availability of a pretermination hearing in every case.”
Dixon, 431 U.S. at 114; see also Mackey, 443 U.S. at 18 (increasing
the number of pre-revocation hearings would “impose a substantial
fiscal and administrative burden on the Commonwealth”). This sort
of governmental interest “is not a controlling weight” in the
Mathews analysis; however, “the Government’s interest, and hence
that of the public, in conserving scarce fiscal and administrative
fines and costs before the court notifies the DMV of their failure to pay, see N.C. Gen. Stat. § 20-24.2(a)(2), and another 60 days after the DMV sends the revocation order before revocation becomes effective, see id. § 20-24.1(a). No named Plaintiff moved for a section 20-24.1(b1) hearing at any point during this 100-day window, nor does the court have any information on how any North Carolina court has ever treated such a motion. A preliminary injunction is an “extraordinary remedy,” and it is up to Plaintiffs to affirmatively “establish that [they are] likely to succeed on the merits.” Winter, 555 U.S. at 20, 22. Any contention that North Carolina courts would fail in a meaningful number of cases to provide a statutory pre-revocation hearing within that 100-day window if one were timely requested is purely speculative on this record. Moreover, even if some traffic defendants experience brief license revocation before their hearing takes place, the Fourth Circuit has found that where the “possible causes for erroneous deprivation” of a driver’s license in a small number of cases “are all remediable in [a] postdeprivation [opportunity to be heard],” the Due Process Clause does not require additional process to ensure that no “temporary inconvenience” is caused by the temporary revocation. Tomai-Minogue, 770 F.2d at 1235; see also id. at 1235–36 (“Where an adverse judgment has not been satisfied by a motorist, Virginia has opted to suspend the license now and discuss the matter later. We decline to undercut that legitimate choice by requiring the taking to be later and the talking to be first.”).
47
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 47 of 54

resources is a factor that must be weighed.” Mathews, 424 U.S. at 348.
Together, the substantial public interest at issue and the fact that section 20-24.1(b1) already mitigates the risk of erroneous deprivations by providing an ability-to-pay hearing “within a reasonable time” to anyone who requests it weigh against a finding that North Carolina must provide additional process. And as previously noted, “the [Supreme] Court has expressly held that the [private] interest [in a driver’s license] is not so great as to require departure from the principle that an evidentiary hearing is not ordinarily required prior to adverse administrative action.” Tomai-Minogue, 770 F.2d at 1235 (citing Dixon, 431 U.S. at 113);34 see also Mackey, 443 U.S. at 12 (burden on private interest in driver’s license lessened when “postsuspension review available to a suspended driver” is “timel[y]”). As a result, Plaintiffs have not shown that they are likely to succeed on their “opportunity to be heard” procedural due process claim, and the court therefore declines to grant a preliminary injunction on that basis. Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the
34 While Dixon’s reasoning on what constitutes an “erroneous deprivation” and “the important public interest in safety on the roads and highways” is not applicable here, the opposite is true of its discussion of “[t]he private interest . . . [in] the granted license to operate a motor vehicle” and “the substantial public interest in administrative efficiency.” 431 U.S. at 113–14.
48
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 48 of 54

merits . . . .”). b. Notice
Plaintiffs’ final claim, and their final proffered basis for demonstrating a likelihood of success on the merits, is that “[t]he DMV fails to provide adequate notice to drivers either before or after licenses are revoked for failure to pay fines and costs, in violation of the Due Process Clause.” (Doc. 35 ¶ 149.) The focus of Plaintiffs’ grievance is the one-page revocation order, entitled “Official Notice,” that the DMV sends traffic defendants pursuant to section 20-24.1(a) upon receiving notice from a state court that the traffic defendant has failed to pay a fine or cost. See (Doc. 55 ¶ 4).
The first full paragraph of the Official Notice states: WE REGRET TO INFORM YOU THAT EFFECTIVE [time and date], YOUR NC DRIVING PRIVILEGE IS SCHEDULED FOR AN INDEFINITE SUSPENSION IN ACCORDANCE WITH GENERAL STATUTE 20-24.1 FOR FAILURE TO PAY FINE AS FOLLOWS: (Doc. 35 ¶ 32.) The Official Notice then lists the traffic defendant’s violation date and citation number, as well as the name and phone number of the state court handling the traffic violation. (Id.) The Official Notice continues: UNFORTUNATELY THE DIVISION OF MOTOR VECHICLES CANNOT ACCEPT PAYMENTS FOR FINES AND COSTS IMPOSED BY THE COURTS. PLEASE CONTACT THE COURT ABOVE TO COMPLY WITH THIS CITATION. NOTE: PLEASE COMPLY WITH THIS CITATION PRIOR TO THE EFFECTIVE DATE IN ORDER TO AVOID THIS SUSPENSION.
49
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 49 of 54

IF YOU HAVE NOT COMPLIED WITH THIS CITATION BY THE EFFECTIVE DATE OF THIS ORDER, YOU WILL NEED TO MAIL YOUR CURRENT NORTH CAROLINA DRIVER LICENSE, IF APPLICABLE, TO THE DIVISION. FAILURE TO DO SO MAY RESULT IN AN ADDITIONAL $50.00 SERVICE FEE.
REINSTATEMENT PROCEDURES: UPON COMPLIANCE WITH THIS CITATION, YOU MAY VISIT YOUR LOCAL DRIVER LICENSE OFFICE. AT SUCH TIME PROPER IDENTIFICATION AND PROOF OF AGE WILL BE NEEDED. A RESTORATION FEE OF $65.00 AND THE APPROPRIATE LICENSE FEES ARE NEEDED AND HAVE TO BE PAID AT THE TIME YOUR DRIVING PRIVILEGE IS REINSTATED.
THIS ORDER IS IN ADDITION TO AND DOES NOT SUPERSEDE ANY PRIOR ORDER ISSUED BY THE DMV. IF ADDITIONAL INFORMATION CONCERNING THIS ORDER IS NEEDED, PLEASE CONTACT A REPRESENTATIVE OF THE DIVISION AT (919) 715-7000. DIRECTOR OF PROCESSING SERVICES (Id.) As Plaintiffs point out, nowhere does the Official Notice
mention that traffic defendants can prevent or reverse their
license revocation by demonstrating their inability to pay under
section 20-24.1(b)(4), nor does it mention the option of requesting an ability-to-pay hearing under section 20-24.1(b1). Instead, it
merely directs recipients to “comply with this citation.” (Id.) In Plaintiffs’ view, the Official Notice’s failure to notify
traffic defendants of the statute’s ability-to-pay and hearing provisions makes it “critically misleading” and insufficient under
the Due Process Clause. (Doc. 39 at 27.) The Commissioner
responds that the “North Carolina[] statute provides” notice and that “procedural due process does not require” individualized
50
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 50 of 54

notice. (Doc. 45 at 21.) As discussed previously, the notice requirement of the Due
Process Clause “ensure[s] that the opportunity for a hearing is meaningful.” West Covina, 525 U.S. at 240; see also Mullane, 339 U.S. at 314 (“Th[e] right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.”). To be sufficient, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. A “mere gesture” is insufficient. Id. at 315. While this requirement sometimes mandates individualized notice, the Supreme Court has held that it does not require “individualized notice of state-law remedies which . . . are established by published, generally available state statutes.” West Covina, 525 U.S. at 241; see also id. (“Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures available to him.”).
In this case, there is a publicly available state statute that clearly lays out the procedures available to traffic defendants facing license revocation. Compare N.C. Gen. Stat. § 20-24.1 with Stinnie, 355 F. Supp. 3d at 529 (explaining that West Covina does not control as to the notice issue in a challenge
51
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 51 of 54

to a Virginia license revocation statute because the Virginia

statute does not provide for any opportunity to be heard).

Plaintiffs make no argument — nor would such an argument be

persuasive — that section 20-24.1 is insufficiently clear about

these procedures.

Instead, Plaintiffs argue that the

individualized Official Notice undermines the statutory notice by

failing to mention all the relevant statutory provisions. This

argument is unpersuasive, as West Covina relies on a presumption

that property owners “can turn to . . . public sources” for notice

when those sources adequately describe the relevant procedures.

Even if the court were to recognize an exception to the West Covina

presumption where a state misleads people who otherwise would have

turned to a publicly-available statute, such an exception could

hardly apply here in light of the fact that the Official Notice

directly cites to section 20-24.1 in its first sentence. (Doc. 35

¶ 32); cf. Nnebe v. Daus, 184 F. Supp. 3d 54, 74 (S.D.N.Y. 2016)

(finding that notice was sufficient under the Due Process Clause

where — inter alia — the individualized notice documents, despite

“not contain[ing]” some important information about the

opportunity to be heard “on their face,” directly cited to a

publicly available document containing the information).35 While,

35 Plaintiffs’ counsel suggested at the hearing that the cases cited in their briefing “implicitly” say that “if the [individualized] notice goes out and tells someone something, they should be able to rely on what [it says].” However, most of the “misleading notice” cases Plaintiffs cite predate West Covina, and the few that do not fail to
52

Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 52 of 54

absent the statute, the Official Notice would not on its own provide sufficient notice, it is not so affirmatively misleading as to destroy the sufficient notice provided by the statute to which it directly cites: “GENERAL STATUTE 20-24.1.” (Doc. 35 ¶ 32.)
2. Outcome of Motion for Preliminary Injunction In conclusion, Plaintiffs have not shown that they are likely to succeed on either of their remaining claims under the Due Process Clause. Because Plaintiffs’ failure to satisfy any one of the four preliminary injunction factors is fatal to their motion, the court need not address the remaining factors and the motion will be denied. See Pashby, 709 F.3d at 320 (stating that “each preliminary injunction factor [must] be satisfied” (internal quotation marks omitted)). III. CONCLUSION For the reasons stated, IT IS THEREFORE ORDERED that the Commissioner’s motion for judgment on the pleadings (Doc. 46) is GRANTED IN PART and DENIED IN PART in that Plaintiffs’ first claim is DISMISSED WITH PREJUDICE but their second and third claims survive insofar as they have not been challenged at this stage. IT IS FURTHER ORDERED that Plaintiffs’ second motion for class
address that decision. Further, one of Plaintiffs’ cited cases is Nnebe itself.
53
Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 53 of 54

certification (Doc. 36) is GRANTED IN PART and that the following
two classes are certified:
Revoked Class: All individuals whose driver’s licenses were revoked by the DMV on or after May 30, 2015, due to their failure to pay fines, penalties, or court costs assessed by a court for a traffic offense, and whose driver’s licenses remain so revoked.
Future Revocation Class: All individuals whose driver’s licenses will be revoked in the future by the DMV due to their failure to pay fines, penalties, or court costs assessed by a court for a traffic offense.
IT IS FURTHER ORDERED that Plaintiffs’ second motion for
preliminary injunction (Doc. 38) is DENIED.

March 31, 2019

/s/ Thomas D. Schroeder United States District Judge

54 Case 1:18-cv-00467-TDS-LPA Document 65 Filed 03/31/19 Page 54 of 54