Case 3:18-cv-01634-HZ As of 01/22/2019 05:35 PM PST Page 1 of 8 Page ID#: <pageID>
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:18−cv−01634−HZ

Mendoza et al v. Garrett et al Assigned to: Judge Marco A. Hernandez Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff Cindy Mendoza on behalf of themself and all others similarly situated
Plaintiff Gloria Bermudez on behalf of themself and all others similarly situated

Date Filed: 09/07/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Beth Shara Englander Disability Rights Oregon 610 SW Broadway Suite 200 Portland, OR 97205 503−243−2081 Fax: 503−243−1738 Email: benglander@oregonlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Teplin Fox Oregon Law Center 522 SW Fifth Ave., Suite 812 Portland, OR 97204 503−473−8314 Email: efox@oregonlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan M. Dennis 625 SE 41st AVE #38 Portland, OR 97214 503−805−0339 Email: jdennis@oregonlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelsey McCowan Heilman Oregon Law Center Portland Regional Office 522 SW Fifth Avenue Portland, OR 97219 503−473−8324 Email: kheilman@oregonlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Antonia Samuelson Oregon Law Center Portland Regional Office 522 SW Fifth Ave., Suite 812 Portland, OR 97204 503−473−8325 Fax: 503−295−0676 Email: msamuelson@oregonlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Beth Shara Englander (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Emily Teplin Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M. Dennis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelsey McCowan Heilman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Antonia Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rebecca Heath on behalf of themself and all others similarly situated

represented by Beth Shara Englander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Teplin Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M. Dennis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelsey McCowan Heilman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Antonia Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Karl Wade Roberts on behalf of themself and all others similarly situated

represented by Beth Shara Englander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Teplin Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M. Dennis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kelsey McCowan Heilman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Antonia Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Cekais Toni Ganuelas on behalf of themself and all others similarly situated

represented by Beth Shara Englander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Teplin Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M. Dennis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelsey McCowan Heilman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Antonia Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jeremy Chase on behalf of themself and all others similarly situated

represented by Beth Shara Englander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Teplin Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M. Dennis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Antonia Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelsey McCowan Heilman (See above for address) ATTORNEY TO BE NOTICED

V.

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Defendant
Matthew Garrett in his official capacity as Director of the Oregon Department of Transportation

represented by Beth Andrews Oregon Department of Justice 1162 Court Street NE Salem, OR 97301−4096 503−947−4700 Email: beth.andrews@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee R. Stineman Oregon Department of Justice Trial Division 100 SW Market Street Portland, OR 97201 971− 673−1880 Fax: 971−673−5000 Email: renee.stineman@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadie Forzley Oregon Department of Justice Trial Division 100 SW Market Street Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: sadie.forzley@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Frank Hammond Oregon Department of Justice Trial Division 1162 Court Street Salem, OR 97301 971−673−1880 Fax: 503−947−4792 Email: frank.hammond@state.or.us TERMINATED: 11/06/2018

Defendant
Tammy Baney in her official capacity as Chair of the Oregon Transportation Commission

represented by Beth Andrews (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee R. Stineman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadie Forzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Frank Hammond (See above for address) TERMINATED: 11/06/2018

Defendant

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Sean O'Hollaren in his official capacity as Member of the Oregon Transportation Commission

represented by Beth Andrews (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee R. Stineman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadie Forzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Frank Hammond (See above for address) TERMINATED: 11/06/2018

Defendant
Bob Van Brocklin in his official capacity as Member of the Oregon Transportation Commission

represented by Beth Andrews (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee R. Stineman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadie Forzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Frank Hammond (See above for address) TERMINATED: 11/06/2018

Defendant
Martin Callery in his official capacity as Member of the Oregon Transportation Commission

represented by Beth Andrews (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee R. Stineman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadie Forzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Frank Hammond (See above for address) TERMINATED: 11/06/2018

Defendant
Tom McClellan in his official capacity as Administrator of Driver and Motor Vehicles Division,

represented by Beth Andrews (See above for address) LEAD ATTORNEY

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Oregon Department of Transportation

ATTORNEY TO BE NOTICED

Renee R. Stineman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadie Forzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Frank Hammond (See above for address) TERMINATED: 11/06/2018

Date Filed 09/07/2018
09/07/2018 09/07/2018 09/07/2018 09/07/2018 09/07/2018 09/07/2018 09/07/2018 09/07/2018 09/10/2018
09/10/2018

# Docket Text
1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 0979−5544819 Jury Trial Requested: Yes. Filed by Cekais Toni Ganuelas, Gloria Bermudez, Cindy Mendoza, Rebecca Heath, Karl Wade Roberts against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons). (Fox, Emily) (Entered: 09/07/2018)
2 Motion for Preliminary Injunction . Oral Argument requested. Filed by All Plaintiffs. (Fox, Emily) (Entered: 09/07/2018)
4 Declaration of Gloria Bermudez . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 , Motion for Preliminary Injunction 2 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Fox, Emily) (Entered: 09/07/2018)
5 Declaration of Beth Englander . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 .) (Fox, Emily) (Entered: 09/07/2018)
6 Declaration of Cekais Toni Ganuelas . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 , Motion for Preliminary Injunction 2 .) (Attachments: # 1 Exhibit 1) (Fox, Emily) (Entered: 09/07/2018)
7 Declaration of Rebecca Heath . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 , Motion for Preliminary Injunction 2 .) (Fox, Emily) (Entered: 09/07/2018)
8 Declaration of Cindy Mendoza . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 , Motion for Preliminary Injunction 2 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Fox, Emily) (Entered: 09/07/2018)
9 Declaration of Karl Wade Roberts . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 , Motion for Preliminary Injunction 2 .) (Attachments: # 1 Exhibit 1) (Fox, Emily) (Entered: 09/07/2018)
10 Declaration of Marisa Samuelson . Filed by All Plaintiffs. (Related document(s): Motion to certify class 3 , Motion for Preliminary Injunction 2 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Fox, Emily) (Entered: 09/07/2018)
11 Notice of Case Assignment to Judge Anna J. Brown and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 1/8/2019. Joint Alternate Dispute Resolution Report is due by 2/7/2019. Pretrial Order is due by 2/7/2019. Ordered by Judge Anna J. Brown. (joha) (Entered: 09/10/2018)
12 Summons Issued Electronically as to Tammy Baney, Martin Callery, Matthew Garrett, Tom McClellan, Sean O'Hollaren, Bob Van Brocklin. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. (joha) (Entered:

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09/13/2018 09/13/2018 09/14/2018
09/18/2018 09/18/2018 09/18/2018
09/20/2018
09/20/2018 09/20/2018 09/21/2018 09/24/2018
09/25/2018 09/25/2018 09/25/2018 09/25/2018 09/26/2018 09/26/2018 09/26/2018

09/10/2018)
13 Notice of Appearance of G. Frank Hammond appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Hammond, G.) (Entered: 09/13/2018)
14 Notice of Case Reassignment: This case has been reassigned from Judge Anna J. Brown to Judge Marco A. Hernandez. (eo) (Entered: 09/13/2018)
15 Scheduling Order by Judge Marco A. Hernandez regarding Motion for Preliminary Injunction 2 . Oral Argument is set for 10/11/2018 at 02:00PM in Portland Courtroom 15A before Judge Marco A. Hernandez. The Response to the motion is due by Noon on 9/25/2018. Reply is due by 10/2/2018. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 09/14/2018)
16 Waiver of Service of Summons Returned Executed by Tom McClellan waiver sent on 9/10/2018. Filed by All Plaintiffs. (Fox, Emily) (Entered: 09/18/2018)
17 Waiver of Service of Summons Returned Executed by Matthew Garrett waiver sent on 9/10/2018. Filed by All Plaintiffs. (Fox, Emily) (Entered: 09/18/2018)
18 Notice of Association of Attorney Renee R. Stineman,Renee R. Stineman for Martin Callery,Renee R. Stineman for Sean O'Hollaren,Renee R. Stineman for Tammy Baney,Renee R. Stineman for Tom McClellan,Renee R. Stineman for Bob Van Brocklin,Renee R. Stineman for Matthew Garrett. Filed by All Defendants. (Stineman, Renee) (Entered: 09/18/2018)
19 Notice of Association of Attorney Beth Andrews,Beth Andrews for Martin Callery,Beth Andrews for Sean O'Hollaren,Beth Andrews for Tammy Baney,Beth Andrews for Tom McClellan,Beth Andrews for Bob Van Brocklin,Beth Andrews for Matthew Garrett. Filed by All Defendants. (Andrews, Beth) (Entered: 09/20/2018)
20 Motion for Extension of Time (Defendants' Opposed Motion to Extend Time for Response to Motion for Class Certification). Filed by All Defendants. (Stineman, Renee) (Entered: 09/20/2018)
21 Declaration of Renee Stineman . Filed by All Defendants. (Related document(s): Motion for Extension of Time 20 .) (Stineman, Renee) (Entered: 09/20/2018)
22 Response in Opposition to Motion for Extension of Time (Defendants' Opposed Motion to Extend Time for Response to Motion for Class Certification) 20 . Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 09/21/2018)
23 ORDER: Granting in part Defendant's motion to extend time to respond to the class certification motion, ECF 20. Defendant's response to the motion for class certification is extended until October 19, 2018. However, the Court will address the entire case schedule, including revisiting the briefing on the class certification motion, at the conclusion of the preliminary injunction hearing set for October 11, 2018. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 09/24/2018)
24 Memorandum in Opposition to Motion for Preliminary Injunction 2 Oral Argument requested. Filed by All Defendants. (Hammond, G.) (Entered: 09/25/2018)
25 Declaration of Jad Lemhouse . Filed by All Defendants. (Related document(s): Memorandum in Opposition 24 .) (Hammond, G.) (Entered: 09/25/2018)
26 Declaration of Karen Brisbin . Filed by All Defendants. (Related document(s): Memorandum in Opposition 24 .) (Hammond, G.) (Entered: 09/25/2018)
27 Declaration of Mary Garcia . Filed by All Defendants. (Related document(s): Memorandum in Opposition 24 .) (Hammond, G.) (Entered: 09/25/2018)
28 Waiver of Service of Summons Returned Executed by Tammy Baney waiver sent on 9/10/2018. Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 09/26/2018)
29 Waiver of Service of Summons Returned Executed by Martin Callery waiver sent on 9/10/2018. Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 09/26/2018)
30 Waiver of Service of Summons Returned Executed by Sean O'Hollaren waiver sent on 9/10/2018. Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 09/26/2018)

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09/27/2018 10/02/2018 10/02/2018 10/02/2018 10/09/2018 10/11/2018 10/11/2018
10/16/2018 11/06/2018 12/12/2018 12/20/2018
01/09/2019
01/11/2019 01/14/2019

31 Waiver of Service of Summons Returned Executed by Bob Van Brocklin waiver sent on 9/10/2018. Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 09/27/2018)
32 Waiver Acceptance of Service on behalf of All Defendants of Motion for Preliminary Injunction, Motion to a Certify a Class. Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 10/02/2018)
33 Reply to Motion for Preliminary Injunction 2 Oral Argument requested. Filed by All Plaintiffs. (Fox, Emily) (Entered: 10/02/2018)
34 Declaration of Jeremy Chase in Support of Plaintiffs' Motion for Preliminary Injunction. Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 2 .) (Fox, Emily) (Entered: 10/02/2018)
35 Declaration of Kathy Stinnett . Filed by All Defendants. (Related document(s): Memorandum in Opposition 24 .) (Stineman, Renee) (Entered: 10/09/2018)
36 Supplemental Declaration of Mary Garcia in Opposition to Motion for Preliminar Injunction. Filed by All Defendants. (Related document(s): Memorandum in Opposition 24 .) (Stineman, Renee) (Entered: 10/11/2018)
37 MINUTES of Proceedings: Oral Argument held regarding Plaintiffs' Motion for Preliminary Injunction 2 . The Court took the matter under advisement as of 10/11/2018. Briefing on the class certification motion, ECF 3, is stayed until further order of the Court. After the Court resolves the motion for preliminary injunction, the Court will set a status conference to discuss the case schedule. Defendants' response to the Complaint, whether it be an Answer or a motion, is not due until after this status conference and at a date which will be set at that time. Emily Teplin Fox and Kelsey McCowan Heilman present as counsel for plaintiff(s). Beth Andrews and Renee R. Stineman present as counsel for defendant(s). Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 10/12/2018)
38 First Amended Complaint . Filed by Cekais Toni Ganuelas, Gloria Bermudez, Cindy Mendoza, Rebecca Heath, Karl Wade Roberts, Jeremy Chase against All Defendants (Attachments: # 1 Attachment Redline of Amended Complaint). (Heilman, Kelsey) (Entered: 10/16/2018)
39 Notice of Attorney Substitution:Attorney Sadie Forzley is substituted as counsel of record in place of Attorney G. Frank Hammond Filed by All Defendants. (Forzley, Sadie) (Entered: 11/06/2018)
40 OPINION & ORDER: Plaintiffs' motion for preliminary injunction 2 is denied. Signed on 12/12/2018 by Judge Marco A. Hernandez. (jp) (Entered: 12/12/2018)
41 Scheduling Order by Judge Marco A. Hernandez. A Scheduling Telephone Conference is set for 1/9/2019 at 03:00PM before Judge Marco A. Hernandez. The parties shall call into the Court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 12/20/2018)
42 MINUTES of Proceedings: Scheduling Conference held. Status of case discussed as stated on the record. Plaintiff to file an Amended Complaint by 2/15/2019. ORDER: Staying the discovery deadline. The PTO and ADR deadlines previously set are STRIKEN and will be reset at a later date. A further Telephone Status Conference is set for 2/25/2019 at 03:00PM before Judge Marco A. Hernandez. The parties shall use the same conference call information used for today's call. Kelsey McGowan Heilman and Marisa Antonia Samuelson present as counsel for plaintiff(s). Beth Andrews, Sadie Forzley and G. Frank Hammond present as counsel for defendant(s).(Court Reporter Nancy Walker.) Judge Marco A. Hernandez presiding. (jp) (Entered: 01/10/2019)
43 Motion to Withdraw Motion to certify class 3 . Filed by All Plaintiffs. (Heilman, Kelsey) (Entered: 01/11/2019)
44 ORDER: Granting Motion to Withdraw 43 Motion to Certify the Class 3 . Ordered by Judge Marco A. Hernandez. (jp) (Entered: 01/14/2019)

 
 Case 3:18-cv-01634-HZ Document 1 Filed 09/07/18 Page 1 of 37

Emily Teplin Fox, OSB No. 121720 efox@oregonlawcenter.org Marisa Samuelson, OSB No. 144234 msamuelson@oregonlawcenter.org Beth Englander, OSB No. 980190 benglander@oregonlawcenter.org Kelsey Heilman, OSB No.140348 kheilman@oregonlawcenter.org OREGON LAW CENTER 522 SW Fifth Ave, Suite 812 Portland, OR 97204 (503) 473-8325
Jonathan M. Dennis, OSB No. 146256 jdennis@oregonlawcenter.org OREGON LAW CENTER 35 SE Fifth Ave., Suite 1 Ontario, OR 97914 (541) 889-3296
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CINDY MENDOZA; GLORIA BERMUDEZ; CEKAIS TONI GANUELAS; REBECCA HEATH; and KARL WADE ROBERTS, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.

Case No.
CLASS ACTION ALLEGATION COMPLAINT
Civil Rights Action (14th Amendment to U.S. Constitution (Due Process and Equal Protection)

MATTHEW GARRETT, in his official capacity as Director of the Oregon Department of Transportation; TAMMY BANEY, in her official capacity as Chair of the Oregon Transportation Commission; SEAN

DEMAND FOR JURY TRIAL

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O’HOLLAREN, in his official capacity as Member of the Oregon Transportation Commission; BOB VAN BROCKLIN, in his official capacity as Member of the Oregon Transportation Commission; MARTIN CALLERY, in his official capacity as Member of the Oregon Transportation Commission; and TOM MCCLELLAN, in his official capacity as Administrator of Driver and Motor Vehicles Division, Oregon Department of Transportation,
Defendants.
Plaintiffs file this complaint against the Director of the Oregon Department of Transportation (“ODOT”), the Chair and Members of the Oregon Transportation Commission (“OTC”), and the Administrator of Driver and Motor Vehicles Division (“DMV”), defined collectively as “the DMV.” Plaintiffs allege as follows:
I. INTRODUCTION
1. During the past ten years, the Oregon DMV suspended Oregonians’ driver’s licenses 334,338 times for failure to pay fines, costs, and fees arising from minor traffic citations (“traffic debt”). Of the approximately 3.1 million Oregonians who hold driver’s licenses,1 as many as 10 percent have had their licenses suspended for failure to pay traffic debt.
2. Approximately 536,146 Oregonians live below the federal poverty line, about
1 In 2016, there were 3,100,321 “drivers of issuance” in Oregon. This includes all license holders with active, expired, and non-active driving privileges. See 2016 Oregon DMV Driver Statistics Report (Run date: 1/18/17).
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13% of the state’s population. “Oregon 2017,” Talk Poverty, https://talkpoverty.org/state-yearreport/oregon-2017-report/ (last visited August 23, 2018). Oregonians living in poverty struggle to pay for basic necessities like food and shelter and cannot afford to pay traffic debt.
3. The DMV suspends driver’s licenses for failure to pay traffic debt without considering an individual’s ability to pay her traffic debt and exempting from suspension those low-income individuals who cannot pay.
4. License suspension may be an appropriate way to secure payment from individuals who can afford to pay traffic debt but willfully refuse to do so. For low-income individuals, this statutory regime punishes them for being poor.
5. For the vast majority of Oregonians, driving is the only reliable means of transportation to find and maintain employment, to get to medical appointments, to take their children to school, and to shop for necessities, including food.
6. Without paying down their traffic debt, low-income Oregonians cannot regain their licenses for 20 years.
7. License suspensions lead to further financial and legal burdens, including charges for driving with a suspended license, and additional fees and fines. A minor traffic infraction – such as failing to buckle a seatbelt or driving with a defective taillight – can plunge low-income people into a legal and financial rut from which any reasonable person would struggle to escape.
8. Plaintiffs and class members in this case are among tens of thousands of Oregonians who have lost their driver’s licenses, and cannot get them back, simply because of their poverty.
9. Punishing people for being unable to pay traffic debt violates the Due Process and
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Equal Protection Clauses of the United States Constitution. 10. Plaintiffs and class members, on behalf of themselves and all others similarly
situated, seek declaratory and injunctive relief against Matthew Garrett, in his official capacity as Director of the ODOT; Tammy Baney, in her official capacity as Chair of the OTC; Sean O’Hollaren, in his official capacity as Member of the OTC; Bob Van Brocklin, in his official capacity as Member of the OTC; Martin Callery, in his official capacity as Member of the OTC; and Tom McClellan, in his official capacity as Administrator of the DMV, to end this unconstitutional statutory scheme.
11. The DMV should refrain from suspending the driver’s licenses of low-income individuals who cannot afford to pay their traffic debt. Alternatively, the DMV should implement an ability-to-pay determination process that comports with due process and equal protection prior to suspending driver licenses for failure to pay traffic debt, and provide subsequent opportunities to lift suspensions because of indigence.
II. JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to 28 U.S.C §§ 1331 and 1343, in that Plaintiffs’ claims arise under the Fourteenth Amendment and 42 U.S.C. § 1983. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to these claims occurred in the District.
III. PARTIES 14. Plaintiff Cindy Mendoza is a resident of Portland, Oregon. 15. Plaintiff Gloria Bermudez is a resident of Portland, Oregon. 16. Plaintiff Cekais Toni Ganuelas is a resident of Mission, Oregon.
CLASS ACTION ALLEGATION COMPLAINT - 4

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17. Plaintiff Karl Wade Roberts is a resident of Baker City, Oregon. 18. Plaintiff Rebecca Heath is a resident of Pendleton, Oregon. 19. Defendant Matthew Garrett is the Director of ODOT. Director Garrett supervises and has authority over the activities of ODOT, including those designed to promote traffic safety and issuing driving privileges to Oregon residents. As part of his duties, Director Garrett appoints and supervises the Administrator of the DMV. DMV’s mission is to promote driver safety, and it is responsible for issuing driving privileges to Oregon residents. Director Garrett is sued in his official capacity. 20. Defendant Tammy Baney is the Chair, and Defendants Sean O’Hollaren, Bob Van Brocklin, and Martin Callery are Members, of the OTC. Among other things, the Chair and Members of the OTC are responsible for establishing policies and adopting rules and orders governing the operation of ODOT, including policies, rules, and orders related to traffic safety and issuing driving privileges to Oregon residents. Commissioners Baney, O’Hollaren, Van Brocklin, and Callery are sued in their official capacity. 21. Defendant Tom McClellan is the Administrator of the DMV. Administrator McClellan supervises and is responsible for the activities, policies, and practices of the DMV, including suspending driver licenses of licensees who are unable to pay court debts for traffic violations. He is sued in his official capacity. … … … …
CLASS ACTION ALLEGATION COMPLAINT - 5

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IV. FACTUAL ALLEGATIONS A. The DMV is Unconstitutionally Punishing Low-Income Traffic Debtors Solely
Because of their Poverty. i. A Driver’s License is Necessary to Maintain Employment and to Access Essential Services.
22. In Oregon, the majority of workers commute by car. Approximately 82% of Oregonians over the age of 16 travel to work by car, either alone or in a carpool.2 Statewide, only 4.3% of residents commute by public transportation, while 6.4% get to work by bicycle or on foot.3
23. For most Oregonians, public transit is not a viable commuting alternative. In 32 of Oregon’s 34 counties, at least 40% of residents do not live within a .25-mile radius of a stop operated by any transit agency. In 28 of Oregon’s 34 counties, the percentage is more than 50%. Access is worse in rural areas. More than 64% of Umatilla County residents and more than 75% of Baker City residents lack access to public transit.
24. Not having a valid driver’s license is a direct barrier to employment because many lower paying jobs require a driver’s license. Alana Semuels, “No Driver’s License, No Job,” The Atlantic (June 15, 2016), https://www.theatlantic.com/business/archive/2016/06/nodrivers-license-no-job/486653/. A study of New Jersey drivers found that 42% of drivers lost their jobs after their driver’s licenses were suspended. Jon A. Carnegie, Ian M. Voohees
2 U.S. Dep’t of Transp., Bur. Of Transp. Stats., OREGON: Transportation by the Numbers (2016), https://www.bts.gov/sites/bts.dot.gov/files/legacy/oregon.pdf
3 Id.
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Transportation Center, Rutgers, The State University of New Jersey, Driver’s License Suspensions, Impacts and Fairness Study 56 (2007), http://njgov/transportation/refdata/research /reports/FHW A-NJ-2007-0200-VI.pdf.
25. Driver’s license suspensions also deprive low-income individuals of employment opportunities because private employers often screen out applicants who do not have driver’s licenses.4 People who are able to travel farther distances also have access to a greater number of job opportunities in different locations.5
26. In urban areas, like Portland, where gentrification and a housing crisis have displaced low-income people and people of color, the ability to travel to work longer distances is crucial.6
27. In rural areas of Oregon, most employment is accessible only by car due to the distances between home and work.
28. A Pew Research Center Study found that 86% of Americans consider a car to be a “necessity of life,” higher than the percentage of people who identified cell phones as a necessity at 47% or microwaves at 45%.7
29. The loss of a driver’s license affects the driver’s basic self-sufficiency. In addition to requiring a car to travel to work, most Oregonians must drive to obtain medical care, to travel to the grocery store to buy food and clothing, and to ensure the care and education of
4 Stephen Bingham et al., Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California, 26-28 (2016).
5 Id., referring generally to Adie Tomer et al., Brookings Institute, Missed Opportunity: Transit and Jobs in Metropolitan America (2011).
6 Id. 7 Paul Taylor and Wendy Wang et al., The Fading Glory of The Television and Telephone, Pew Research Center 1 (Aug. 10, 2010), http://assets.pewresearch.org/wpcontent/uploads/sites/3/2011/01/Final-TV-and-Telephone.pdf
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their children. 30. Even in urban areas, where public transportation is more widely available, taking
buses or trains is not a viable option for many people. Delays create the risk of a late arrival to work or a tardy pick up of a child from a childcare facility. Multiple transfers require departure early in the morning and return late in the evening, hours when childcare is either very expensive or unavailable. A low-income person cannot afford to simply pay for a taxi or summon an Uber or Lyft to get them where they need to go.
ii. Oregon’s License Suspension Regime for Traffic Debtors. 31. In Oregon, a minor traffic violation8 results in the imposition of a fine, based on the violation’s statutory classification. See ORS §§ 153.012, 153.018-153.021. 32. Oregon circuit courts abide by a uniform fine schedule. ORS § 153.800.9 In general, courts may not “defer, waive, suspend or otherwise reduce the fine” below the statutory minimum. ORS § 153.021. 33. When a driver is charged with a traffic violation, the officer issues him or her a citation with the corresponding “presumptive fine.” ORS §§ 153.019, 153.020. For example, failing to signal a turn is a Class D violation. ORS § 811.335(1)(b). The presumptive fine is $115. ORS § 153.019(1)(d). Driving 11 to 20 miles per hour in excess of the speed limit, is a Class C traffic violation. ORS § 811.109(1)(b). The presumptive fine for this violation is $165.
8 “Traffic offense” is the umbrella term for actions that violate Oregon traffic laws and ordinances. ORS § 801.555. An offense is a “traffic violation” if the sentence does not include jail time. ORS § 153.008.
9 See Office of the State Court Administrator, 2018 “Schedule of Fines” on Violations (SOF-18), available at https://digital.osl.state.or.us/islandora/object/osl%3A104207/datastream/OBJ/view.
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ORS § 153.019(1)(c). 34. People who can afford to pay traffic violation fines simply pay them. However,
many Oregonians cannot afford a $100 to $200 fine. 35. According to a recent Federal Reserve survey, approximately 40% of Americans
reported that they did not have enough money to cover a $400 emergency expense.10 More than 13% of Oregonians live below the federal poverty line.11 The rate of food insecurity is even higher, affecting 552,900 Oregonians.12
36. In Oregon, traffic debt is collected by courts, private collections agencies, the Oregon Department of Revenue. The DMV also collects reinstatement and issuance fees, a portion of the traffic debt.
37. Circuit courts generally provide a 35-day window for collection of traffic fines and fees; after that time, a “failure to comply” license sanction is entered and the account becomes delinquent. See ORS § 809.210 (2017). See also Oregon Judicial Department Financial Case Processing Manual – Collections (updated Dec. 2017), at p. 5.
38. In Multnomah County, the court imposes the following fees if a debtor fails to satisfy a monetary judgment within 30 days: $50 for amounts up to $149.99; $125 for amounts from $150 to $399.99; or $200 for amounts greater than $400.14
10 Report on the Economic Well-Being of U.S. Households in 2017, May 2018, at 21, available at https://www.federalreserve.gov/publications/files/2017-report-economic-well-beingus-households-201805.pdf.
11 U.S. Census Bureau, Quick Facts: Oregon, available at https://www.census.gov/quickfacts/fact/table/or/INC110216.
12 Oregon Food Bank, Hunger in Oregon, available at https://www.oregonfoodbank.org/our-work/hunger-in-oregon/.
14 Schedule available at https://www.courts.oregon.gov/courts/multnomah/payments/Pages/faq.aspx
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39. If an individual does not pay her debt in full within the required time, the court may send the account to a private collections agency or the Oregon Department of Revenue, resulting in even more costs and fees. See ORS §§ 1.102(2), 293.231, 697.105. Clackamas County Circuit Court, for example, adds a 28% fee to delinquent account balances when it refers debts to the Department of Revenue or a private collection agency.
40. When a traffic debtor “fails or refuses to pay” traffic debt, the court may do one of the following: (1) issue a notice of suspension to the Department of Transportation that directs the department to implement procedures under ORS § 809.416 or (2) order a defendant’s driving privileges restricted. ORS § 809.210(1)(a) & (b).
41. The statute does not require courts to make a pre-suspension ability-to-pay determination.
42. When the deadline passes without payment from the licensee, court clerks notify the DMV of the nonpayment of the debt.
43. The clerks automatically send notices of the delinquencies to the DMV without any individualized inquiry into the reason for nonpayment, including the licensee’s ability to pay the debt. Judges are not involved in the process.
44. Courts impose a $15 fee each time they send notification to the DMV for failure to comply with payment of court fees, fines, and costs. ORS § 809.267.
45. Pursuant to ORS § 809.416(2)-(3), the DMV suspends a traffic debtor’s driver’s license upon receipt of a notice of suspension and issuance of a 60-day warning to the traffic debtor.
46. To avoid or end the suspension, the traffic debtor must present the DMV with a
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notice of reinstatement issued by the court showing that she “(A) [i]s making payments, has paid the fine[,] or has obeyed the order of the court; or (B) [h]as enrolled in a preapprenticeship program…or is a registered apprentice.” ORS § 809.416(2).
47. Unless a licensee pays her traffic debt, she generally must wait 20 years “from the date the traffic offense occurred” before the suspension on her driver’s license is lifted. Id. ORS § 809.415(4)(a)(B).
48. While a traffic debtor can request administrative review of her suspension, inability to pay is not a defense. ORS §§ 809.415(4)(b), 809.440.
49. Oregon’s circuit courts allow, but do not oblige, courts to offer payment plans for traffic debt. These plans come with additional fees, and minimum monthly payment amounts are calculated based on the amount owed, without consideration of the debtor’s financial circumstances. These courts may add a fee that is at least $50 and as much as $200 “to any judgment that includes a monetary obligation that the court or judicial branch is charged with collecting.” ORS § 1.202(1). See also Chief Justice Order No. 11-027 (June 20, 2011). Municipal courts may, or may not, offer any payment plan at all.
50. If an individual enters into a payment plan, the suspension may be re-imposed “if the person ceases making payments before the fine is paid in full.” ORS § 809.210(4)(a).
51. License holders are not permitted to be heard by the DMV on the question of whether they are able to afford their payment plan or whether their poverty caused them to miss payments.
52. Once a driver has had her license suspended, she risks being cited for driving with a suspended license. This is an additional, new traffic violation, ORS § 811.175, with a
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presumptive fine of $440, ORS § 153.019(1)(a), subject to the same debt collection and license suspension procedures.
53. Low-income debtors who manage to pay down their traffic debt within the 20year suspension period face one final economic barrier: a $75 reinstatement fee, and issuance fees between $26.50 and $68, depending on whether the debtor’s driver’s license has expired with the passage of time. ORS § 807.370(5), (25), (33).
54. Fee waivers for reinstatements and issuance fees are available, but not on the basis that the requester is unable to pay. ORS §§ 809.380(6)(a)-(L), 809.380(7).
55. In 2017 alone, 2,433 Oregonians were eligible for license reinstatement after traffic debt-related suspension, but they did not pay reinstatement and issuance fees.
56. Low-income Oregonians struggle to supply food for their families, pay utilities, and pay rent. Even when they scrape together the funds to discharge traffic debt, paying an additional $150 or more for the reinstatement and issuance of their driver’s license is a final, significant obstacle.
iii. Consequences of Oregon’s License Suspension Law.
57. Between 2012 and 2017, the DMV issued an average of 33,482 license suspensions each year because of a driver’s failure to pay court debts arising out of traffic violations.
58. Oregon’s driver’s license suspension statute, ORS § 809.416, puts low-income people in an impossible position. They either stop driving, making it impossible to meet their work and family obligations, or drive illegally, placing themselves at risk of being cited for driving with a suspended license and further compounding their traffic debt.
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59. Tens of thousands of Oregon residents take the risk of driving with a suspended license each year. In 2010, DMV reported 40,837 drivers were convicted for driving on a suspended license. See Joseph Rose, “After 7 Suspensions, Why Hasn’t Oregon Revoked Jefferson Smith’s License?,” The Oregonian/Oregon Live (August 22, 2012); See also Nick Morgan, “Many Oregon Drivers Undeterred by Suspended Licenses,” The Associated Press (January 4, 2018); Eric Hidle, “Driving While Suspended in Oregon: Thousands do it, but law officers say little can be done to solve the problem,” The Bulletin (April 25, 2011).
60. With each violation for driving on a suspended license – a new traffic violation – low-income residents amass even more traffic debt. The fine for driving on a suspended license, a class A traffic violation, is presumptively $440, with a minimum fine of $225 and a maximum fine of $2,000. ORS § 153.019.
61. Low-income people who rely on their vehicles, but cannot afford to pay their traffic debts, risk these additional fines and punishments every time they drive.
B. The DMV’s License Suspension Scheme, Which Provides No Indigency Exception for Traffic Debtors, Is Unconstitutional. i. Discriminatory Debt Collection.
62. Drivers of all income levels are cited for minor traffic violations, but in Oregon, the consequences of these citations are far worse for drivers who are poor.
63. Moderate and high-income drivers can easily avoid license suspension by simply paying their fines. Wealthier drivers can get numerous traffic violations, pay the fines, and keep driving.
64. For low-income drivers, paying a $115 to $440 fine for a traffic violation is an insurmountable obstacle. Unlike higher-income drivers who can afford to pay these fines, an
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indigent driver has no way to avoid suspension. 65. Under Oregon’s wealth-based license suspension regime, indigent drivers can be
cited for one minor traffic violation and find themselves plunged deeper into debt as they risk further fines for driving while suspended.
66. Oregonians who owe traffic debt to county, municipal, or justice courts also are singled out for harsh and discriminatory treatment compared to other types of indigent debtors.
67. ORS § 809.416 differentiates between traffic debtors who committed bicycle, pedestrian, or parking offenses and other traffic debtors. See also ORS § 809.210(7) (prohibiting courts from sending a notice of suspension to those who have failed to pay fines for bicycle, pedestrian or parking offenses).
68. A low-income person who is cited for failing to signal or stop on a bicycle, ORS § 814.440, but who cannot afford to pay the fine, will not have her license suspended. By contrast, an indigent person who owes a fine for driving with a broken taillight and cannot pay her court debt is punished with a license suspension and related negative consequences.
69. Similarly, private judgment debtors in civil actions in Oregon, such as individuals indebted to credit card companies, are not subject to a suspension of their driver’s licenses if they are too poor to pay their debt.
70. While both debtors may find themselves subject to collection actions by private collection firms, a private debt holder does not risk losing his driver’s license if he cannot afford to make payments or pay the balance in full. By contrast, traffic debtors receive an automatic punishment of suspension simply because they owe a debt to the state.
71. Indigent child support debtors also receive more procedural protections than do
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traffic debtors. 72. Oregon suspends driver’s licenses for failure to pay child support. ORS §
25.750(1)(a). However, child support debtors have the ability to avoid suspension of their driver’s licenses at the following three stages: (1) at the establishment of a support obligation, ORS § 25.275(1)(a)-(d); (2) at any modification proceeding, ORS § 25.280, 25.287(5), OAR 137-055-3430(3)(c)(B) (“substantial change” warranting modification includes financial changes); and (3) once the child support debtor’s payments are in arrears, ORS § 25.750(1)(a).
73. Unlike traffic debtors, child support debtors also are accorded a six-month, indefinitely renewable “hardship exception” to reduce or eliminate the parent’s obligations upon demonstration of that parent’s inability to pay. OAR 137-055-4420(10).
74. Accordingly, in Oregon, a parent who owes child support can avoid suspension of his driver’s license by demonstrating he cannot afford his child support obligation. By contrast, a single parent who receives no child support, and is responsible for her children, will lose her driver’s license simply because she is too poor to pay a fine for a broken tail light violation.
C. The DMV’s License Suspension Scheme Deprives Traffic Debtors of Procedural Due Process. i. Indigent Traffic Debtors Are Not Afforded an Ability-to-Pay Hearing.
75. For low-income traffic debtors in Oregon, having a driver’s license to operate a car is much more than a mode of transportation. It is an essential tool to maintain selfsufficiency, to find or keep a job, and to care for one’s children.
76. Unlike child support debtors who have several opportunities to establish their indigence to avoid license suspensions, traffic debtors have no right to have their indigence determined, by any entity, at any point prior to or during their suspension. The DMV does not
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evaluate ability-to-pay nor ensure that any entity has made such a determination prior to or during the period of suspension.
77. Although the Oregon Judicial Department allows circuit courts to offer payment plans, minimum payment amounts are tied to the total debt amount rather than to the amount the debtor can afford to pay each month. In addition, these plans involve additional fees. Some municipal courts may not offer any payment plan.
78. Delinquent payment plans generally result in courts automatically generating a notice of suspension.
79. Once the DMV issues a driver’s license suspension notice, debtors can only avoid suspension by obtaining a notice of reinstatement from the court indicating full payment or payment plan compliance, or engagement in certain apprenticeship programs. ORS § 809.416(2)(a)-(b). Debtors have no opportunity to avoid or challenge the suspension based on inability to pay.
80. Administrative review of the DMV’s suspension does not stay the suspension and is limited to an evaluation of criteria unrelated to the debtor’s ability to pay or indigency. ORS § 809.415((4)(b) and ORS § 809.440(2);
81. At no point during the process of suspending driver’s licenses does the DMV provide a procedure for low-income traffic debtors to demonstrate that they are unable to pay their traffic debt.
82. For indigent traffic debtors who cannot afford to pay their traffic debt or make the minimum payments under a payment plan, Oregon’s lack of pre-suspension procedural safeguards results in hundreds of thousands of low-income individuals systematically being
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punished for being poor. D. The Named Plaintiffs. i. Cindy Mendoza 83. Cindy Mendoza is 28-year-old resident of Portland, Oregon. Ms. Mendoza is
raising three sons on her own: a 2-year-old toddler, a 7-year old, and a 9-year old. 84. Ms. Mendoza lives in a two-bedroom subsidized apartment. Until recently, Ms.
Mendoza and her children lived in a motel room; they were forced to move to the motel after their previous residence, a homeless shelter, became uninhabitable after the roof caved in from a heavy leak.
85. Ms. Mendoza is currently unemployed. She is looking for work, but has had difficulty finding a job without a valid driver’s license. She receives approximately $1,100 monthly in assistance, including food stamps. She has no other source of income, placing her family well below the federal poverty line.
86. Near the end of every month, Ms. Mendoza’s family struggles without enough food. She has to try to find free food boxes at pantries so that her family has something to eat.
87. The first time Ms. Mendoza’s driver’s license was suspended was on June 8, 2010, after getting a traffic violation in Wasco County for speeding. The ticket was for $400. Ms. Mendoza was unemployed at the time and had a new baby. She could not afford to pay the traffic fine. The amount increased to $812 with court costs and fees and the debt was referred to a collections agency.
88. It took Ms. Mendoza five years, but after obtaining steady employment, she was finally able to pay off her debt to Wasco County Circuit Court and her license was reinstated in
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April 2015. 89. However, prior to paying off that debt, Ms. Mendoza was cited a few more times
for driving on a suspended license. These additional traffic citations put her in a downward spiral, making it impossible for her to ever get caught up.
90. Ms. Mendoza’s driver’s license is currently suspended because she owes $1,660.37 to Milwaukie Municipal Court for various traffic violations, including a January 8, 2016, citation for driving on a suspended license. DMV suspended her license on April 8, 2016 due to her inability to pay her court debt for these traffic violations.
91. Ms. Mendoza also owes $2,020.40 to Beaverton Municipal Court for nonpayment of court fines and fees for another driving on a suspended license traffic violation that occurred on August 24, 2013. The DMV suspended her license for non-payment of her court debt on July 29, 2015.13
92. Additionally, Ms. Mendoza owes $7,602 in unpaid court fines and fees to Clackamas County Circuit Court for failing to appear at her arraignment for a misdemeanor traffic case involving a car accident with property damage only. Ms. Mendoza is on a payment plan for this case, but she cannot afford to pay $100 per month to the court when she is unemployed and is the sole provider for her three children. Because Ms. Mendoza has missed her payments, in June 2018 Clackamas Circuit Court referred her debt to collections. She anticipates that the court will also send a notice to the DMV to suspend her driver’s license.
93. The DMV never considered whether Ms. Mendoza could afford to pay her traffic
13 The DMV also suspended Ms. Mendoza’s license on October 11, 2013 due to her failure to appear for a hearing in that same case, but that suspension is no longer active.
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debt before suspending her license. 94. The DMV has not offered Ms. Mendoza any opportunity to reinstate her license
based on her inability to pay. 95. In total, Ms. Mendoza owes $11,282.77 to three courts. If she could afford to, Ms.
Mendoza would pay these debts, or make periodic payments to reduce the amounts of debt she owes.
96. Due to her poverty, it impossible for Ms. Mendoza to pay this sum to get her driver’s license reinstated. In fact, she is too poor to pay anything at all. Therefore, she cannot benefit from a payment plan, even though one has been offered to her.
97. Meanwhile, Ms. Mendoza continues to drive, risking further traffic violations for driving on a suspended license. She is looking for employment, but is limited in the types of jobs that she can apply for because she does not have a driver’s license. Recently she inquired about a position as a street “flagger” for construction jobs, but she was turned away because the job required a valid driver’s license. Ms. Mendoza has also had a difficult time finding work that is close to her apartment so that she can avoid using her car for transportation.
98. Nevertheless, Ms. Mendoza continues to drive so that she can get her children to medical appointments and to buy clothes and food for her family.
99. Ms. Mendoza knows she is taking a risk driving on a suspended driver’s license, but she feels as though she has no other choice because she is too poor to pay enormous sums of traffic debt and relies on her vehicle to provide necessities for herself and her family.
ii. Gloria Bermudez 100. Gloria Bermudez is a 36-year-old resident of Portland, Oregon. She is a single
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mother with four children, ages 11, 8, 7 and 6. She is the sole wage earner for her family. Ms. Bermudez works as a cook at a restaurant in a shopping mall. She earns $14 per hour or approximately $1,600 per month. She also receives approximately $420 per month in food stamps to help feed her family.
101. Ms. Bermudez struggles to keep up with her electric, gas, and phone bills every month. Frequently, by the end of the month, she seeks free food at pantries to put food on the table.
102. Ms. Bermudez’s driver’s license is currently suspended because she is unable to pay a total of $2,812.38 in traffic debt to two courts, Multnomah County Circuit Court and Washington County Justice Court.
103. Ms. Bermudez owes $1,902.38 to Multnomah County Circuit Court related to three different traffic violation cases.
104. In one of the cases, she was cited on February 22, 2003 for failing to obey a traffic control device. The ticket – originally for $175 – grew to $299.16 with additional court fees and costs. Initially, her license was suspended, in May 2003, because she failed to appear at her arraignment. Her debt was sent to collections. The court later set her up on a payment plan and her license was reinstated on May 12, 2010. However, she couldn’t afford to keep up with these $50 payments, so the DMV suspended her license again – this time based on her failure to pay her traffic debt – on September 14, 2012.
105. In another case, she was cited on July 1, 2013 for failing to use proper child seats for her two children. This was originally a $120 ticket, but grew to $237 with added fees. The DMV suspended her license due to her inability to pay that amount on October 7, 2013.
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106. At the time that Ms. Bermudez was cited for improper use of child seats, she was also cited for driving on a suspended license, driving with expired tags, and driving while uninsured. In this related case, Ms. Bermudez owes $1,306 in unpaid court fines and fees to Multnomah County Circuit Court for failing to appear at her arraignment. The DMV suspended her driver’s license in that case on January 21, 2014.
107. Ms. Bermudez estimates that, during the past ten years, she has paid hundreds of dollars in payments to Multnomah County Circuit Court, but she always fell behind on these payments because she did not have enough money to keep up.
108. Ms. Bermudez also owes Washington County Justice Court a total of $910 for traffic debt.
109. In one of the cases, she was cited on July 2, 2012 for driving while operating a cell phone, driving without proof of insurance, and for driving with a suspended license. Due to her inability to pay $470 in fines and fees for that case, the DMV suspended her driver’s license on October 7, 2013.
110. In her 2012 case, Ms. Bermudez was offered a payment plan of $75 per month to pay her traffic debt. However, she was not able to make her initial payment on August 24, 2012 because she had recently given birth to a premature baby and had no money to spare. She handdelivered a letter to the court explaining these circumstances. The court did not offer to eliminate or further reduce her payments under the plan.
111. More recently, on February 24, 2018, Ms. Bermudez was stopped by the police while driving home late after work. She was cited for driving on a suspended license. Ms. Bermudez owes another $440 for this traffic violation. She received a letter, on April 6, 2018,
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from Washington County Justice Court informing her that if she is unable to pay this amount or begin making payments by April 20, 2018, the court would send a notice of suspension to the DMV. Ms. Bermudez cannot afford to pay this debt either. She fears receiving another notice by mail from the DMV informing her that her driver’s license will be suspended for failing to pay this additional traffic debt.
112. The DMV never considered whether Ms. Bermudez could afford to pay her traffic debt before suspending her license.
113. DMV has not offered Ms. Bermudez any opportunity to reinstate her license based on her inability to pay.
114. If Ms. Bermudez could afford to pay down her court debts, she would. However, her poverty makes it impossible for her to apply any amount of money towards this debt.
115. Ms. Bermudez has continued to drive despite the risk that she may be cited again for driving on a suspended license. Her workplace is about seven miles away from her home. It takes her 25 minutes to drive to work. It would take her about an hour to get to work on city buses.
116. Ms. Bermudez also drives her four children to school, which is a 5- to 10-minute car ride. The alternative, that her children board a school bus at 6:45am to take an hour-long bus ride to their school, would result in her young children becoming sleep-deprived, jeopardizing their ability to learn at school, as well as increasing their chances of numerous health problems.14 Ms. Bermudez also drives to buy groceries at the store and to take her children to medical
14 See https://www.nichd.nih.gov/health/topics/sleep/conditioninfo/sleep-deprivation; See also https://www.cdc.gov/healthyschools/sleep.htm.
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appointments. 117. Ms. Bermudez knows she risks getting more traffic violations for driving on a
suspended license, which also means amassing more court debt. However, she feels as though she has no other choice to maintain her job and transport her family.
iii. Cekais Toni Ganuelas 118. Cekais Toni Ganuelas is a 27-year-old resident of Mission, Oregon, which is about six miles outside of Pendleton. She and her 8-year-old daughter live in a room they rent from a friend. 119. Until recently, Ms. Ganuelas worked as a bartender at a restaurant in Pendleton. She worked about twenty hours per week and earned minimum wage plus tips, or about $400 per week. She was fired in late July 2018 when she failed to show up for work due to transportation difficulties. Since Ms. Ganuelas lost her job, her only source of income is $140 per month from teaching yoga. She does not currently receive food stamps or cash assistance. 120. Ms. Ganuelas is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation. The Tribes operate a shuttle service between Pendleton and Mission, Oregon. Ms. Ganuelas is able to use the shuttle some days. However, the shuttle runs only between about 8 a.m. and 5 p.m. Monday through Saturday. The shuttle was not a viable option for Ms. Ganuelas when she was working as a bartender because her shifts began and ended at irregular hours, including late at night. In addition, the shuttle stopped on the opposite side of a busy four-lane highway, requiring her to make a dangerous crossing on foot to get to work. 121. In 2012, Ms. Ganuelas was cited for failure to display plates. She was unable to pay her $150 ticket, so the Pendleton Municipal Court notified the DMV. The DMV suspended
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her driver’s license on July 16, 2012. 122. Since Ms. Ganuela’s license suspension in 2012, she has received multiple
additional suspension notices for failure to pay traffic debt. 123. Most recently, the DMV sent Ms. Ganuelas a notice of suspension on October 27,
2016, notifying her that her license would be suspended effective December 25, 2016. That suspension was in connection with her failure to pay a $195 speeding ticket in Umatilla County Circuit Court.
124. Ms. Ganuelas has also been cited at least three times for driving with a suspended license.
125. The DMV never considered whether Ms. Ganuelas could afford to pay her traffic debt before suspending her license.
126. DMV has not offered Ms. Ganuelas any opportunity to reinstate her license based on her inability to pay.
127. Ms. Ganuelas believes that she currently owes in excess of $750 in traffic debt to three courts: Umatilla County Circuit Court, Pendleton Municipal Court, and Lower Kittitas County District Court in Washington State.
128. When Ms. Ganuelas can afford to, she has made payments to the courts to pay for her traffic debt. Currently, it is impossible for her to pay any amount of money toward her traffic debt. Without a steady source of income, paying any amount toward traffic debt would make it even harder to keep herself and her daughter clothed, fed, and housed.
129. Not having a valid driver’s license makes it difficult for Ms. Ganuelas to provide for herself and her daughter. In order to buy groceries, clothes, necessary household goods, she
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must find a ride into Pendleton, which cost of at least $10 each way by taxi. 130. Ms. Ganuelas’ daughter loves to play soccer and wants to play with the Pendleton
Youth Soccer Association. That group has strict rules about parental involvement and being on time for practices and games. Because Ms. Ganuelas has to rely on friends to get to Pendleton, her daughter has not been able to play on a soccer team for the past two years.
131. Ms. Ganuelas has also missed many events at her daughter’s school because her license is suspended. In December 2017, she was unable to attend an awards ceremony at her daughter’s school, where he daughter received an award, because she could not drive there.
132. Family is very important to Ms. Ganuelas and her extended family lives in Alaska, Washington, and other parts of Oregon. Not being able to drive with a valid license means she cannot travel to family functions out of state. Ms. Ganuelas’ grandparents, who are more than eighty years old, live in Yakima, Washington, 150 miles away from my home. She laments not being able to visit them and to attend important family events at their home because her license is suspended.
133. Ms. Ganuelas knows the consequences of driving without a valid license. To return home after her grandmother’s 84th birthday in Yakima in July 2015, Ms. Ganuelas took the risk of driving her mother’s car so that she could make it to work on time. She had no other transportation option. She was stopped for speeding and for driving on a suspended license.
134. Ms. Ganuelas has been trying to find work, but having a suspended license is a hurdle. For the past three weeks, she have been looking for a job through the Tribal Employment Rights Office. One of the questions on the sign-in form is “do you have a valid license?” Many of the jobs also require a driver’s license. ODOT was hiring flaggers through
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TERO, but she did not qualify because her license is suspended. It is also difficult for her to follow up on applications or attend interviews without being able to drive.
135. If Ms. Ganuelas had an opportunity now, or at any time since her license has been suspended, to get her suspensions lifted by showing that she cannot afford to pay her traffic debt, she would take it.
136. Every day without a driver’s license makes it hard for Ms. Ganuelas to shop for groceries, provide for her daughter, and find a job.
iv. Karl Wade Roberts 137. Plaintiff Karl Wade Roberts is 57-year-old resident of Baker City, Oregon. Mr. Roberts lives with his wife. He and his wife each receive $562 per month in social security income. They do not receive income from any other source. Their combined monthly income of $1,124 places them below the federal poverty line. 138. Mr. Roberts has been unable to work since March 2003 due to the combined effects of injuries from an automobile accident in 1984 and a traumatic brain injury in 2003. 139. On December 30, 1994, DMV suspended Mr. Roberts’s license after he failed to pay a traffic ticket. His driving privileges have not been restored since then. 140. During the last twenty-five years, Mr. Roberts has received at least twenty additional notices of suspension based in full or in part upon his failure to pay tickets for minor traffic violations, such as driving while suspended or illegal display of plates. The DMV most recently suspended his license on September 4, 2018. 141. Mr. Roberts currently owes traffic debt for approximately 11 unpaid traffic tickets. He owes $3,580 in fees and fines to the Baker County Justice Court. He also owes $465
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to a collection agency on a traffic debt assigned to that agency by the Arlington County Justice Court.
142. Before becoming disabled, Mr. Roberts made payments to the Baker County Justice Court, hoping to get his license reinstated. Since then, he has acquired more traffic debt, making it impossible for him to make the payments with his limited income.
143. For Mr. Roberts’s amount of traffic debt, the Baker County Justice Court will not approve a payment plan with a monthly payment of less than $50 per month. He cannot pay $50 per month toward those debts.
144. Mr. Roberts has been jailed for not paying traffic fines and fees that he could not afford to pay.
145. The DMV never considered whether Mr. Roberts could afford to pay his traffic debt before suspending his license.
146. The DMV has not offered Mr. Roberts any opportunity to reinstate his license based on his inability to pay.
147. Mr. Roberts’ wife does not have a driver’s license and requires frequent transportation to medical appointments due to her health.
148. Mr. Roberts used to ride his bicycle, even during Baker City’s harsh winters, to purchase groceries and other necessities for his family. As he has aged, it has become difficult for him to carry groceries by bike.
149. Mr. Roberts is an enrolled member of the Western Cherokee Nation of Arkansas and Missouri. As part of his Native heritage, he grew up fishing and hunting. Loss of driving privileges severely diminished his ability to enjoy these important cultural and recreational
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activities. 150. Mr. Roberts’ adult children live in Boise, Idaho and St. Louis, Missouri. He
cannot afford to fly to see them. Without a license, he rarely gets to visit them. 151. There is very little public transportation where Mr. Roberts lives. 152. Mr. Roberts continues to drive on a limited basis. He lives in fear, knowing that
he risks accumulating more traffic debt for driving with a suspended license, and additional jail time, if he receives additional traffic tickets that he cannot afford to pay. However, he needs to drive to provide for his wife’s and his own basic needs.
v. Rebecca Heath 153. Plaintiff Rebecca Heath is 60-year-old resident of Pendleton, Oregon. 154. Ms. Heath receives $750 per month in SSDI and $189 per month in food stamps. 155. Ms. Heath is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation. Each quarter, she receives $400 in casino dividends. In the months she receives a casino dividend check, her SSDI check is reduced by $400. 156. Ms. Heath does not receive income from any other source. Her monthly income of $939 places her below the federal poverty line. 157. Ms. Heath suffers from a debilitating back injury. She also fought a years-long battle with a tuberculosis. Due to these health problems, she was homeless for seven years, from 2010 to 2017. 158. Ms. Heath was found disabled and began receiving SSDI in 2017. Prior to that, she attempted to make ends meet by collecting cans, selling beadwork, and performing Native dance. She has not been able to maintain regular employment since 1997.
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159. Ms. Heath’s driver’s license was originally suspended on September 29, 1995, after she failed to appear on an out-of-state traffic ticket. Her driving privileges have not been restored since then.
160. Over the past 23 years, Ms. Heath has received approximately six additional notices of driver’s license suspension from the DMV as a result of her inability to pay her traffic debt. At the time of each suspension, she was too poor to afford to pay the traffic debt.
161. Because more than 20 years have passed since Ms. Heath’s license was suspended for failure to pay traffic debt, she is eligible for reinstatement. However, she cannot reinstate her license because she cannot afford DMV’s testing and reinstatement fees of $149.
162. Ms. Heath has been jailed for paying traffic fines and fees that she could not afford to pay.
163. The DMV never considered whether Ms. Heath could afford to pay her traffic debt before suspending her license.
164. The DMV has not offered Ms. Heath any opportunity to reinstate her license based on her inability to pay.
165. The DMV does not waive or reduce reinstatement fees based on inability to pay. 166. Being unable to drive made it very difficult for Ms. Heath to find and maintain regular employment. At her last regular job, in 1997, she had to walk 5.5 miles each way to get to work without driving. 167. Due to her inability to drive, Ms. Heath has had to pay expensive cab fares; walk long distances in extreme weather; and take slow public transit systems. She has missed important family and cultural events such as funeral services and tribal gatherings. During the
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seven years she was homeless, Ms. Heath’s inability to drive meant that she had to carry all her possessions with her in a backpack.
168. Plaintiffs Mendoza, Bermudez, Roberts and Heath, through their attorney, sent a letter to Administrator McClellan of the DMV on August 14, 2018, requesting that their driver’s licenses be reinstated, that their reinstatement fees be waived, and that the agency stop its practice of suspending driver’s licenses for non-payment of traffic debt. Alternatively, these Plaintiffs requested that the DMV provide an opportunity, through a hearing, to lift their suspensions based on their inability to pay their traffic debt.
169. The DMV denied Plaintiffs’ requests in a letter, dated August 21, 2018. V. CLASS ACTION ALLEGATIONS
170. This action is brought and may properly be maintained as a class action pursuant to Federal Rules of Civil Procedure 23(a)(1)-(4) and 23(b)(2).
171. This lawsuit satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
A. Numerosity – Fed. R. Civ. P. 23(a)(1) 172. The class in this suit is so numerous that joinder of all of its members is
impracticable. During the last ten years, the Oregon DMV suspended Oregonians’ driver’s licenses 334,338 times for failure to pay traffic debt. In 2017 alone, the DMV issued 32,280 license suspensions for failure to pay traffic debt. Many of the individuals whose driver’s licenses were suspended are, like the named plaintiffs, low-income people who are not paying traffic debt solely because they cannot afford to.
B. Commonality – Fed. R. Civ. P. 23(a)(2)
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173. The relief sought is common to all class members, and common questions of law and fact exist as to all class members. All of the named Plaintiffs have had their driver’s licenses suspended for non-payment of traffic debt. All of the Plaintiffs were and are unable to pay because of their poverty.
174. The DMV automatically suspends driver’s licenses for failure to pay court fees and fines as mandated under Or Rev. Stat. § 809.416 and Or. Rev. Stat. § 809.210(4)(b). The requirements of the suspension statutes apply equally to class members, and the resolution of these legal and factual issues will determine whether all class members are entitled to the relief they seek.
175. The named Plaintiffs seek relief concerning whether the DMV’s policy and practice of suspending the driver’s licenses of those who are too poor to pay their traffic debt violates the rights of class members. Plaintiffs also seek relief mandating that Defendants end their policy and practice so that the constitutional rights of the class will be protected in the future.
176. The questions of law and fact common to the class predominate over any questions affecting solely individual members of the action, and include:
a. Whether Defendants’ policy and practice of suspending driver’s licenses for nonpayment of traffic debt without considering the license-holder’s ability to pay deprives Plaintiffs and class members of substantive due process and equal protection, in violation of the Fourteenth Amendment to the United States Constitution;
b. Whether Defendants’ wealth-based suspension scheme violates procedural due
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process because it does not provide an ability-to-pay hearing; c. Whether Defendants’ wealth-based suspension scheme violates equal protection
and substantive due process because indigent traffic debtors are treated differently than traffic debtors who can afford to pay their traffic violation fines to avoid driver’s license suspensions; d. Whether Defendants violate the Equal Protection Clause by treating indigent traffic debtors differently from other similarly situated indigent debtors; e. Whether Plaintiffs and members of the class are entitled to declaratory relief; and f. Whether Plaintiffs and class members are entitled to injunctive relief. C. Typicality – Fed. R. Civ. P. 23(a)(3) 177. Plaintiffs’ claims are typical of the class. Plaintiffs, like all other members of the class, are Oregon residents who had their driver’s licenses suspended for their inability to pay their traffic debt to Oregon courts. They are all affected by the Defendants’ suspension of their driver’s licenses and continue to risk further traffic violations – and traffic debt – by driving with suspended driver’s licenses. 178. If the named Plaintiffs succeed in their claim that the Defendant’s policy and practice of suspending driver’s licenses of residents who are too poor to pay traffic debt violates their constitutional rights, that ruling would benefit every class member. D. Adequacy – Fed. R. Civ. P. 23(a)(4) 179. Plaintiffs will fairly and adequately protect the interests of the class. There are no known conflicts among class members, all of whom have a similar interest in asserting their constitutional rights.
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… E. Rule 23(b) 180. This case is appropriate for class certification under Fed. R. Civ. P. 23(b)(2)
because Defendants’ policy and practice of suspending driver’s licenses for non-payment of traffic debt warrants declaratory and injunctive relief that is appropriate to the class as a whole. A declaration and injunction stating that the DMV cannot suspend driver’s licenses when someone is too poor to pay their traffic debt would provide relief to every member of the class.
181. Concentrating this litigation in one forum, as opposed to separate individual cases in various courts, will promote judicial economy, consistency and parity among the claims of individual class members. Allowing this lawsuit to proceed as a class action will permit the class of similarly situated persons to prosecute their common claims in a single forum simultaneously and efficiently.
182. Plaintiffs are not aware of any difficulty that could be encountered in the management of this action that would preclude its maintenance as a class action.
VI. FIRST CLAIM FOR RELIEF Fourteenth Amendment to the U.S. Constitution (Due Process/Equal Protection Bearden
and Griffin Violation) 183. Plaintiffs incorporate by reference the allegations above as if fully set forth herein. 184. The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall … deprive any person of life, liberty, or property without due process of law.” U.S. Const.
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amend. XIV, §1. 185. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o
State shall … deny to any person within its jurisdiction the equal protection of the laws.” 186. Griffin v. Illinois, 351 U.S. 12 (1956), and its progeny, establishes the principle
that people should not be penalized just for being poor. Under Griffin, states must provide an evaluation of ability to pay to assess an individual’s indigence prior to any taking any measures that could result in any additional punishment beyond that imposed upon financially solvent individuals.
187. The Fourteenth Amendment’s Due Process and Equal Protection Clauses prohibit 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).
188. Under Griffin and Bearden, DMV’s automatic suspension of driver’s licenses for nonpayment of traffic debt without any inquiry into or consideration of the license holder’s ability to pay violates the right to substantive due process and equal protection.
VII. SECOND CLAIM FOR RELIEF Fourteenth Amendment to the U.S. Constitution (Equal Protection Under Strange)
189. Plaintiffs incorporate the allegations above as if fully set forth herein. 190. Defendants’ policy and practice of suspending driver’s licenses as a means of debt collection for state courts from people who are too poor to pay their traffic debts, but not suspending the driver’s licenses of other indigent judgment debtors, violates the right to equal protection under the law guaranteed by the Fourteenth Amendment to the United States
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Constitution. 191. Under James v. Strange, 407 U.S. 128 (1972), the Defendants’ policy and practice
of suspending driver’s licenses under ORS § 809.416 violates the equal protection clause because it empowers the DMV to treat indigent traffic debtors worse than traffic debtors who committed bicycle, pedestrian, or parking offenses, private debtors with delinquent credit card debt, and child support debtors. In Oregon, only indigent traffic debtors are punished with driver’s license suspensions without any inquiry into or consideration of their ability to pay their traffic debt.
VIII. THIRD CLAIM FOR RELIEF Fourteenth Amendment to the U.S. Constitution (Procedural Due Process – Failure to
Provide Pre- and Post-Deprivation Hearings) 192. Plaintiffs incorporate the allegations above as if fully set forth herein. 193. Plaintiffs have protected property and liberty interests in their driver’s licenses and their ability to drive legally. Defendants violate Plaintiffs’ procedural due process rights by suspending their licenses without affording them a pre-suspension hearing to determine whether they are able to pay their traffic debt. Defendants also violate Plaintiffs’ procedural due process rights by not affording them a post-suspension hearing to determine if they are unable to pay their traffic debt. 194. Plaintiffs are entitled to prospective relief under 42 U.S.C. § 1983, because they have demonstrated that Defendants, acting under color of state law, caused them to suffer a violation of a right secured by the Constitution. See West v. Atkins, 487 U.S. 42, 48 (1988).
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IX. DEMAND FOR JURY TRIAL 195. Plaintiffs hereby demand a trial by jury.
X. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and all members of the proposed class, pray for: (a) An order designating this action as a class action; (b) A declaration that Defendants’ practices with respect to suspensions of driver’s licenses as alleged herein have violated and continue to violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution as to the class; (c) An order and judgment preliminarily and permanently ordering Defendants, their subordinates, agents, employees, representatives, and all others acting or purporting to act on their behalf, from suspending driver’s licenses for unpaid traffic debt against Plaintiffs and class members until such time as the DMV and the State of Oregon implement a system that complies with the United States Constitution; (d) An order and judgment preliminarily and permanently ordering Defendants to remove Plaintiffs’ and class members’ suspensions for non-payment of traffic debt that were effected prior to the date of judgment in this matter and enjoining the Defendants from requiring the Plaintiffs and class members to pay reinstatement fees as a condition of reinstatement; (e) An award of reasonable attorney fees pursuant to 42 U.S.C. § 1988, and costs and disbursements incurred herein; (f) Prejudgment interest; and (g) Such other and further legal and equitable relief as this Court deems just and proper.
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DATED this 7th day of September, 2018.
OREGON LAW CENTER
/s/ Marisa Samuelson Emily Teplin Fox, OSB No. 121720 efox@oregonlawcenter.org Marisa Samuelson, OSB No. 144234 msamuelson@oregonlawcenter.org Beth Englander, OSB No. 980190 benglander@oregonlawcenter.org Kelsey Heilman, OSB No. 140348 kheilman@oregonlawcenter.org 522 SW Fifth Ave., Suite 812 Portland, OR 97204 (503) 473-8310 Jonathan M. Dennis, OSB 146256 jdennis@oregonlawcenter.org 35 SE Fifth Ave., Suite 1 Ontario, OR 97914 (541) 889-3296 Of Attorneys for Plaintiffs
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Emily Teplin Fox, OSB No. 121720 efox@oregonlawcenter.org Marisa Samuelson, OSB No. 144234 msamuelson@oregonlawcenter.org Beth Englander, OSB No. 980190 benglander@oregonlawcenter.org Kelsey Heilman, OSB No.140348 kheilman@oregonlawcenter.org OREGON LAW CENTER 522 SW Fifth Ave, Suite 812 Portland, OR 97204 (503) 473-8325
Jonathan M. Dennis, OSB No. 146256 jdennis@oregonlawcenter.org OREGON LAW CENTER 35 SE Fifth Ave., Suite 1 Ontario, OR 97914 (541) 889-3296
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CINDY MENDOZA; GLORIA BERMUDEZ; JEREMY CHASE; CEKAIS TONI GANUELAS; REBECCA HEATH; and KARL WADE ROBERTS, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.

Case No. 3:18-cv-01634-HZ
FIRST AMENDED CLASS ACTION ALLEGATION COMPLAINT
Civil Rights Action (14th Amendment to U.S. Constitution (Due Process and Equal Protection)

MATTHEW GARRETT, in his official capacity as Director of the Oregon Department of Transportation; TAMMY BANEY, in her official capacity as Chair of the Oregon Transportation Commission; SEAN

DEMAND FOR JURY TRIAL

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O’HOLLAREN, in his official capacity as Member of the Oregon Transportation Commission; BOB VAN BROCKLIN, in his official capacity as Member of the Oregon Transportation Commission; MARTIN CALLERY, in his official capacity as Member of the Oregon Transportation Commission; and TOM MCCLELLAN, in his official capacity as Administrator of Driver and Motor Vehicles Division, Oregon Department of Transportation,
Defendants.
Plaintiffs file this complaint against the Director of the Oregon Department of Transportation (“ODOT”), the Chair and Members of the Oregon Transportation Commission (“OTC”), and the Administrator of Driver and Motor Vehicles Division (“DMV”), defined collectively as “the DMV.” Plaintiffs allege as follows:
I. INTRODUCTION
1. During the past ten years, the Oregon DMV suspended Oregonians’ driver’s licenses 334,338 times for failure to pay fines, costs, and fees arising from minor traffic citations (“traffic debt”). Of the approximately 3.1 million Oregonians who hold driver’s licenses,1 as many as 10 percent have had their licenses suspended for failure to pay traffic debt.
2. Approximately 536,146 Oregonians live below the federal poverty line, about
1 In 2016, there were 3,100,321 “drivers of issuance” in Oregon. This includes all license holders with active, expired, and non-active driving privileges. See 2016 Oregon DMV Driver Statistics Report (Run date: 1/18/17).
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13% of the state’s population. “Oregon 2017,” Talk Poverty, https://talkpoverty.org/state-yearreport/oregon-2017-report/ (last visited August 23, 2018). Oregonians living in poverty struggle to pay for basic necessities like food and shelter and cannot afford to pay traffic debt.
3. The DMV suspends driver’s licenses for failure to pay traffic debt without considering an individual’s ability to pay her traffic debt and exempting from suspension those low-income individuals who cannot pay.
4. License suspension may be an appropriate way to secure payment from individuals who can afford to pay traffic debt but willfully refuse to do so. For low-income individuals, this statutory regime punishes them for being poor.
5. For the vast majority of Oregonians, driving is the only reliable means of transportation to find and maintain employment, to get to medical appointments, to take their children to school, and to shop for necessities, including food.
6. Without paying down their traffic debt, low-income Oregonians cannot regain their licenses for 20 years.
7. License suspensions lead to further financial and legal burdens, including charges for driving with a suspended license, and additional fees and fines. A minor traffic infraction – such as failing to buckle a seatbelt or driving with a defective taillight – can plunge low-income people into a legal and financial rut from which any reasonable person would struggle to escape.
8. Plaintiffs and class members in this case are among tens of thousands of Oregonians who have lost their driver’s licenses, and cannot get them back, simply because of their poverty.
9. Punishing people for being unable to pay traffic debt violates the Due Process and
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Equal Protection Clauses of the United States Constitution. 10. Plaintiffs and class members, on behalf of themselves and all others similarly
situated, seek declaratory and injunctive relief against Matthew Garrett, in his official capacity as Director of the ODOT; Tammy Baney, in her official capacity as Chair of the OTC; Sean O’Hollaren, in his official capacity as Member of the OTC; Bob Van Brocklin, in his official capacity as Member of the OTC; Martin Callery, in his official capacity as Member of the OTC; and Tom McClellan, in his official capacity as Administrator of the DMV, to end this unconstitutional statutory scheme.
11. The DMV should refrain from suspending the driver’s licenses of low-income individuals who cannot afford to pay their traffic debt. Alternatively, the DMV should implement an ability-to-pay determination process that comports with due process and equal protection prior to suspending driver licenses for failure to pay traffic debt, and provide subsequent opportunities to lift suspensions because of indigence.
II. JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to 28 U.S.C §§ 1331 and 1343, in that Plaintiffs’ claims arise under the Fourteenth Amendment and 42 U.S.C. § 1983. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to these claims occurred in the District.
III. PARTIES 14. Plaintiff Cindy Mendoza is a resident of Portland, Oregon. 15. Plaintiff Gloria Bermudez is a resident of Portland, Oregon. 16. Plaintiff Jeremy Chase is a resident of Vancouver, Washington.
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17. Plaintiff Cekais Toni Ganuelas is a resident of Mission, Oregon. 18. Plaintiff Karl Wade Roberts is a resident of Baker City, Oregon. 19. Plaintiff Rebecca Heath is a resident of Pendleton, Oregon. 20. Defendant Matthew Garrett is the Director of ODOT. Director Garrett supervises and has authority over the activities of ODOT, including those designed to promote traffic safety and issuing driving privileges to Oregon residents. As part of his duties, Director Garrett appoints and supervises the Administrator of the DMV. DMV’s mission is to promote driver safety, and it is responsible for issuing driving privileges to Oregon residents. Director Garrett is sued in his official capacity. 21. Defendant Tammy Baney is the Chair, and Defendants Sean O’Hollaren, Bob Van Brocklin, and Martin Callery are Members, of the OTC. Among other things, the Chair and Members of the OTC are responsible for establishing policies and adopting rules and orders governing the operation of ODOT, including policies, rules, and orders related to traffic safety and issuing driving privileges to Oregon residents. Commissioners Baney, O’Hollaren, Van Brocklin, and Callery are sued in their official capacity. 22. Defendant Tom McClellan is the Administrator of the DMV. Administrator McClellan supervises and is responsible for the activities, policies, and practices of the DMV, including suspending driver licenses of licensees who are unable to pay court debts for traffic violations. He is sued in his official capacity. … … …
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IV. FACTUAL ALLEGATIONS A. The DMV is Unconstitutionally Punishing Low-Income Traffic Debtors Solely
Because of their Poverty. i. A Driver’s License is Necessary to Maintain Employment and to Access Essential Services.
23. In Oregon, the majority of workers commute by car. Approximately 82% of Oregonians over the age of 16 travel to work by car, either alone or in a carpool.2 Statewide, only 4.3% of residents commute by public transportation, while 6.4% get to work by bicycle or on foot.3
24. For most Oregonians, public transit is not a viable commuting alternative. In 32 of Oregon’s 34 counties, at least 40% of residents do not live within a .25-mile radius of a stop operated by any transit agency. In 28 of Oregon’s 34 counties, the percentage is more than 50%. Access is worse in rural areas. More than 64% of Umatilla County residents and more than 75% of Baker City residents lack access to public transit.
25. Not having a valid driver’s license is a direct barrier to employment because many lower paying jobs require a driver’s license. Alana Semuels, “No Driver’s License, No Job,” The Atlantic (June 15, 2016), https://www.theatlantic.com/business/archive/2016/06/nodrivers-license-no-job/486653/. A study of New Jersey drivers found that 42% of drivers lost their jobs after their driver’s licenses were suspended. Jon A. Carnegie, Ian M. Voohees Transportation Center, Rutgers, The State University of New Jersey, Driver’s License
2 U.S. Dep’t of Transp., Bur. Of Transp. Stats., OREGON: Transportation by the Numbers (2016), https://www.bts.gov/sites/bts.dot.gov/files/legacy/oregon.pdf
3 Id.
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Suspensions, Impacts and Fairness Study 56 (2007), http://njgov/transportation/refdata/research /reports/FHW A-NJ-2007-0200-VI.pdf.
26. Driver’s license suspensions also deprive low-income individuals of employment opportunities because private employers often screen out applicants who do not have driver’s licenses.4 People who are able to travel farther distances also have access to a greater number of job opportunities in different locations.5
27. In urban areas, like Portland, where gentrification and a housing crisis have displaced low-income people and people of color, the ability to travel to work longer distances is crucial.6
28. In rural areas of Oregon, most employment is accessible only by car due to the distances between home and work.
29. A Pew Research Center Study found that 86% of Americans consider a car to be a “necessity of life,” higher than the percentage of people who identified cell phones as a necessity at 47% or microwaves at 45%.7
30. The loss of a driver’s license affects the driver’s basic self-sufficiency. In addition to requiring a car to travel to work, most Oregonians must drive to obtain medical care, to travel to the grocery store to buy food and clothing, and to ensure the care and education of their children.
4 Stephen Bingham et al., Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California, 26-28 (2016).
5 Id., referring generally to Adie Tomer et al., Brookings Institute, Missed Opportunity: Transit and Jobs in Metropolitan America (2011).
6 Id. 7 Paul Taylor and Wendy Wang et al., The Fading Glory of The Television and Telephone, Pew Research Center 1 (Aug. 10, 2010), http://assets.pewresearch.org/wpcontent/uploads/sites/3/2011/01/Final-TV-and-Telephone.pdf
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31. Even in urban areas, where public transportation is more widely available, taking buses or trains is not a viable option for many people. Delays create the risk of a late arrival to work or a tardy pick up of a child from a childcare facility. Multiple transfers require departure early in the morning and return late in the evening, hours when childcare is either very expensive or unavailable. A low-income person cannot afford to simply pay for a taxi or summon an Uber or Lyft to get them where they need to go.
ii. Oregon’s License Suspension Regime for Traffic Debtors. 32. In Oregon, a minor traffic violation8 results in the imposition of a fine, based on the violation’s statutory classification. See ORS §§ 153.012, 153.018-153.021. 33. Oregon circuit courts abide by a uniform fine schedule. ORS § 153.800.9 In general, courts may not “defer, waive, suspend or otherwise reduce the fine” below the statutory minimum. ORS § 153.021. 34. When a driver is charged with a traffic violation, the officer issues him or her a citation with the corresponding “presumptive fine.” ORS §§ 153.019, 153.020. For example, failing to signal a turn is a Class D violation. ORS § 811.335(1)(b). The presumptive fine is $115. ORS § 153.019(1)(d). Driving 11 to 20 miles per hour in excess of the speed limit, is a Class C traffic violation. ORS § 811.109(1)(b). The presumptive fine for this violation is $165. ORS § 153.019(1)(c).
8 “Traffic offense” is the umbrella term for actions that violate Oregon traffic laws and ordinances. ORS § 801.555. An offense is a “traffic violation” if the sentence does not include jail time. ORS § 153.008.
9 See Office of the State Court Administrator, 2018 “Schedule of Fines” on Violations (SOF-18), available at https://digital.osl.state.or.us/islandora/object/osl%3A104207/datastream/OBJ/view.
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35. People who can afford to pay traffic violation fines simply pay them. However, many Oregonians cannot afford a $100 to $200 fine.
36. According to a recent Federal Reserve survey, approximately 40% of Americans reported that they did not have enough money to cover a $400 emergency expense.10 More than 13% of Oregonians live below the federal poverty line.11 The rate of food insecurity is even higher, affecting 552,900 Oregonians.12
37. In Oregon, traffic debt is collected by courts, private collections agencies, the Oregon Department of Revenue. The DMV also collects reinstatement and issuance fees, a portion of the traffic debt.
38. Circuit courts generally provide a 35-day window for collection of traffic fines and fees; after that time, a “failure to comply” license sanction is entered and the account becomes delinquent. See ORS § 809.210 (2017). See also Oregon Judicial Department Financial Case Processing Manual – Collections (updated Dec. 2017), at p. 5.
39. In Multnomah County, the court imposes the following fees if a debtor fails to satisfy a monetary judgment within 30 days: $50 for amounts up to $149.99; $125 for amounts from $150 to $399.99; or $200 for amounts greater than $400.14
40. If an individual does not pay her debt in full within the required time, the court
10 Report on the Economic Well-Being of U.S. Households in 2017, May 2018, at 21, available at https://www.federalreserve.gov/publications/files/2017-report-economic-well-beingus-households-201805.pdf.
11 U.S. Census Bureau, Quick Facts: Oregon, available at https://www.census.gov/quickfacts/fact/table/or/INC110216.
12 Oregon Food Bank, Hunger in Oregon, available at https://www.oregonfoodbank.org/our-work/hunger-in-oregon/.
14 Schedule available at https://www.courts.oregon.gov/courts/multnomah/payments/Pages/faq.aspx
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may send the account to a private collections agency or the Oregon Department of Revenue, resulting in even more costs and fees. See ORS §§ 1.102(2), 293.231, 697.105. Clackamas County Circuit Court, for example, adds a 28% fee to delinquent account balances when it refers debts to the Department of Revenue or a private collection agency.
41. When a traffic debtor “fails or refuses to pay” traffic debt, the court may do one of the following: (1) issue a notice of suspension to the Department of Transportation that directs the department to implement procedures under ORS § 809.416 or (2) order a defendant’s driving privileges restricted. ORS § 809.210(1)(a) & (b).
42. The statute does not require courts to make a pre-suspension ability-to-pay determination.
43. When the deadline passes without payment from the licensee, court clerks notify the DMV of the nonpayment of the debt.
44. The clerks automatically send notices of the delinquencies to the DMV without any individualized inquiry into the reason for nonpayment, including the licensee’s ability to pay the debt. Judges are not involved in the process.
45. Courts impose a $15 fee each time they send notification to the DMV for failure to comply with payment of court fees, fines, and costs. ORS § 809.267.
46. Pursuant to ORS § 809.416(2)-(3), the DMV suspends a traffic debtor’s driver’s license upon receipt of a notice of suspension and issuance of a 60-day warning to the traffic debtor.
47. To avoid or end the suspension, the traffic debtor must present the DMV with a notice of reinstatement issued by the court showing that she “(A) [i]s making payments, has paid
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the fine[,] or has obeyed the order of the court; or (B) [h]as enrolled in a preapprenticeship program…or is a registered apprentice.” ORS § 809.416(2).
48. Unless a licensee pays her traffic debt, she generally must wait 20 years “from the date the traffic offense occurred” before the suspension on her driver’s license is lifted. Id. ORS § 809.415(4)(a)(B).
49. While a traffic debtor can request administrative review of her suspension, inability to pay is not a defense. ORS §§ 809.415(4)(b), 809.440.
50. Oregon’s circuit courts allow, but do not oblige, courts to offer payment plans for traffic debt. These plans come with additional fees, and minimum monthly payment amounts are calculated based on the amount owed, without consideration of the debtor’s financial circumstances. These courts may add a fee that is at least $50 and as much as $200 “to any judgment that includes a monetary obligation that the court or judicial branch is charged with collecting.” ORS § 1.202(1). See also Chief Justice Order No. 11-027 (June 20, 2011). Municipal courts may, or may not, offer any payment plan at all.
51. If an individual enters into a payment plan, the suspension may be re-imposed “if the person ceases making payments before the fine is paid in full.” ORS § 809.210(4)(a).
52. License holders are not permitted to be heard by the DMV on the question of whether they are able to afford their payment plan or whether their poverty caused them to miss payments.
53. Once a driver has had her license suspended, she risks being cited for driving with a suspended license. This is an additional, new traffic violation, ORS § 811.175, with a presumptive fine of $440, ORS § 153.019(1)(a), subject to the same debt collection and license
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suspension procedures. 54. Low-income debtors who manage to pay down their traffic debt within the 20-
year suspension period face one final economic barrier: a $75 reinstatement fee, and issuance fees between $26.50 and $68, depending on whether the debtor’s driver’s license has expired with the passage of time. ORS § 807.370(5), (25), (33).
55. Fee waivers for reinstatements and issuance fees are available, but not on the basis that the requester is unable to pay. ORS §§ 809.380(6)(a)-(L), 809.380(7).
56. In 2017 alone, 2,433 Oregonians were eligible for license reinstatement after traffic debt-related suspension, but they did not pay reinstatement and issuance fees.
57. Low-income Oregonians struggle to supply food for their families, pay utilities, and pay rent. Even when they scrape together the funds to discharge traffic debt, paying an additional $150 or more for the reinstatement and issuance of their driver’s license is a final, significant obstacle.
iii. Consequences of Oregon’s License Suspension Law.
58. Between 2012 and 2017, the DMV issued an average of 33,482 license suspensions each year because of a driver’s failure to pay court debts arising out of traffic violations.
59. Oregon’s driver’s license suspension statute, ORS § 809.416, puts low-income people in an impossible position. They either stop driving, making it impossible to meet their work and family obligations, or drive illegally, placing themselves at risk of being cited for driving with a suspended license and further compounding their traffic debt.
60. Tens of thousands of Oregon residents take the risk of driving with a suspended
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license each year. In 2010, DMV reported 40,837 drivers were convicted for driving on a suspended license. See Joseph Rose, “After 7 Suspensions, Why Hasn’t Oregon Revoked Jefferson Smith’s License?,” The Oregonian/Oregon Live (August 22, 2012); See also Nick Morgan, “Many Oregon Drivers Undeterred by Suspended Licenses,” The Associated Press (January 4, 2018); Eric Hidle, “Driving While Suspended in Oregon: Thousands do it, but law officers say little can be done to solve the problem,” The Bulletin (April 25, 2011).
61. With each violation for driving on a suspended license – a new traffic violation – low-income residents amass even more traffic debt. The fine for driving on a suspended license, a class A traffic violation, is presumptively $440, with a minimum fine of $225 and a maximum fine of $2,000. ORS § 153.019.
62. Low-income people who rely on their vehicles, but cannot afford to pay their traffic debts, risk these additional fines and punishments every time they drive.
B. The DMV’s License Suspension Scheme, Which Provides No Indigency Exception for Traffic Debtors, Is Unconstitutional. i. Discriminatory Debt Collection.
63. Drivers of all income levels are cited for minor traffic violations, but in Oregon, the consequences of these citations are far worse for drivers who are poor.
64. Moderate and high-income drivers can easily avoid license suspension by simply paying their fines. Wealthier drivers can get numerous traffic violations, pay the fines, and keep driving.
65. For low-income drivers, paying a $115 to $440 fine for a traffic violation is an insurmountable obstacle. Unlike higher-income drivers who can afford to pay these fines, an indigent driver has no way to avoid suspension.
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66. Under Oregon’s wealth-based license suspension regime, indigent drivers can be cited for one minor traffic violation and find themselves plunged deeper into debt as they risk further fines for driving while suspended.
67. Oregonians who owe traffic debt to county, municipal, or justice courts also are singled out for harsh and discriminatory treatment compared to other types of indigent debtors.
68. ORS § 809.416 differentiates between traffic debtors who committed bicycle, pedestrian, or parking offenses and other traffic debtors. See also ORS § 809.210(7) (prohibiting courts from sending a notice of suspension to those who have failed to pay fines for bicycle, pedestrian or parking offenses).
69. A low-income person who is cited for failing to signal or stop on a bicycle, ORS § 814.440, but who cannot afford to pay the fine, will not have her license suspended. By contrast, an indigent person who owes a fine for driving with a broken taillight and cannot pay her court debt is punished with a license suspension and related negative consequences.
70. Similarly, private judgment debtors in civil actions in Oregon, such as individuals indebted to credit card companies, are not subject to a suspension of their driver’s licenses if they are too poor to pay their debt.
71. While both debtors may find themselves subject to collection actions by private collection firms, a private debt holder does not risk losing his driver’s license if he cannot afford to make payments or pay the balance in full. By contrast, traffic debtors receive an automatic punishment of suspension simply because they owe a debt to the state.
72. Indigent child support debtors also receive more procedural protections than do traffic debtors.
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73. Oregon suspends driver’s licenses for failure to pay child support. ORS § 25.750(1)(a). However, child support debtors have the ability to avoid suspension of their driver’s licenses at the following three stages: (1) at the establishment of a support obligation, ORS § 25.275(1)(a)-(d); (2) at any modification proceeding, ORS § 25.280, 25.287(5), OAR 137-055-3430(3)(c)(B) (“substantial change” warranting modification includes financial changes); and (3) once the child support debtor’s payments are in arrears, ORS § 25.750(1)(a).
74. Unlike traffic debtors, child support debtors also are accorded a six-month, indefinitely renewable “hardship exception” to reduce or eliminate the parent’s obligations upon demonstration of that parent’s inability to pay. OAR 137-055-4420(10).
75. Accordingly, in Oregon, a parent who owes child support can avoid suspension of his driver’s license by demonstrating he cannot afford his child support obligation. By contrast, a single parent who receives no child support, and is responsible for her children, will lose her driver’s license simply because she is too poor to pay a fine for a broken tail light violation.
C. The DMV’s License Suspension Scheme Deprives Traffic Debtors of Procedural Due Process. i. Indigent Traffic Debtors Are Not Afforded an Ability-to-Pay Hearing.
76. For low-income traffic debtors in Oregon, having a driver’s license to operate a car is much more than a mode of transportation. It is an essential tool to maintain selfsufficiency, to find or keep a job, and to care for one’s children.
77. Unlike child support debtors who have several opportunities to establish their indigence to avoid license suspensions, traffic debtors have no right to have their indigence determined, by any entity, at any point prior to or during their suspension. The DMV does not evaluate ability-to-pay nor ensure that any entity has made such a determination prior to or
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during the period of suspension. 78. Although the Oregon Judicial Department allows circuit courts to offer payment
plans, minimum payment amounts are tied to the total debt amount rather than to the amount the debtor can afford to pay each month. In addition, these plans involve additional fees. Some municipal courts may not offer any payment plan.
79. Delinquent payment plans generally result in courts automatically generating a notice of suspension.
80. Once the DMV issues a driver’s license suspension notice, debtors can only avoid suspension by obtaining a notice of reinstatement from the court indicating full payment or payment plan compliance, or engagement in certain apprenticeship programs. ORS § 809.416(2)(a)-(b). Debtors have no opportunity to avoid or challenge the suspension based on inability to pay.
81. Administrative review of the DMV’s suspension does not stay the suspension and is limited to an evaluation of criteria unrelated to the debtor’s ability to pay or indigency. ORS § 809.415((4)(b) and ORS § 809.440(2);
82. At no point during the process of suspending driver’s licenses does the DMV provide a procedure for low-income traffic debtors to demonstrate that they are unable to pay their traffic debt.
83. For indigent traffic debtors who cannot afford to pay their traffic debt or make the minimum payments under a payment plan, Oregon’s lack of pre-suspension procedural safeguards results in hundreds of thousands of low-income individuals systematically being punished for being poor.
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D. The Named Plaintiffs. i. Cindy Mendoza
84. Cindy Mendoza is 28-year-old resident of Portland, Oregon. Ms. Mendoza is raising three sons on her own: a 2-year-old toddler, a 7-year old, and a 9-year old.
85. Ms. Mendoza lives in a two-bedroom subsidized apartment. Until recently, Ms. Mendoza and her children lived in a motel room; they were forced to move to the motel after their previous residence, a homeless shelter, became uninhabitable after the roof caved in from a heavy leak.
86. Ms. Mendoza is currently unemployed. She is looking for work, but has had difficulty finding a job without a valid driver’s license. She receives approximately $1,100 monthly in assistance, including food stamps. She has no other source of income, placing her family well below the federal poverty line.
87. Near the end of every month, Ms. Mendoza’s family struggles without enough food. She has to try to find free food boxes at pantries so that her family has something to eat.
88. The first time Ms. Mendoza’s driver’s license was suspended was on June 8, 2010, after getting a traffic violation in Wasco County for speeding. The ticket was for $400. Ms. Mendoza was unemployed at the time and had a new baby. She could not afford to pay the traffic fine. The amount increased to $812 with court costs and fees and the debt was referred to a collections agency.
89. It took Ms. Mendoza five years, but after obtaining steady employment, she was finally able to pay off her debt to Wasco County Circuit Court and her license was reinstated in April 2015.
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90. However, prior to paying off that debt, Ms. Mendoza was cited a few more times for driving on a suspended license. These additional traffic citations put her in a downward spiral, making it impossible for her to ever get caught up.
91. Ms. Mendoza’s driver’s license is currently suspended because she owes $1,660.37 to Milwaukie Municipal Court for various traffic violations, including a January 8, 2016, citation for driving on a suspended license. DMV suspended her license on April 8, 2016 due to her inability to pay her court debt for these traffic violations.
92. Ms. Mendoza also owes $2,020.40 to Beaverton Municipal Court for nonpayment of court fines and fees for another driving on a suspended license traffic violation that occurred on August 24, 2013. The DMV suspended her license for non-payment of her court debt on July 29, 2015.13
93. Additionally, Ms. Mendoza owes $7,602 in unpaid court fines and fees to Clackamas County Circuit Court for failing to appear at her arraignment for a misdemeanor traffic case involving a car accident with property damage only. Ms. Mendoza is on a payment plan for this case, but she cannot afford to pay $100 per month to the court when she is unemployed and is the sole provider for her three children. Because Ms. Mendoza has missed her payments, in June 2018 Clackamas Circuit Court referred her debt to collections. She anticipates that the court will also send a notice to the DMV to suspend her driver’s license.
94. The DMV never considered whether Ms. Mendoza could afford to pay her traffic debt before suspending her license.
13 The DMV also suspended Ms. Mendoza’s license on October 11, 2013 due to her failure to appear for a hearing in that same case, but that suspension is no longer active.
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95. The DMV has not offered Ms. Mendoza any opportunity to reinstate her license based on her inability to pay.
96. In total, Ms. Mendoza owes $11,282.77 to three courts. If she could afford to, Ms. Mendoza would pay these debts, or make periodic payments to reduce the amounts of debt she owes.
97. Due to her poverty, it impossible for Ms. Mendoza to pay this sum to get her driver’s license reinstated. In fact, she is too poor to pay anything at all. Therefore, she cannot benefit from a payment plan, even though one has been offered to her.
98. Meanwhile, Ms. Mendoza continues to drive, risking further traffic violations for driving on a suspended license. She is looking for employment, but is limited in the types of jobs that she can apply for because she does not have a driver’s license. Recently she inquired about a position as a street “flagger” for construction jobs, but she was turned away because the job required a valid driver’s license. Ms. Mendoza has also had a difficult time finding work that is close to her apartment so that she can avoid using her car for transportation.
99. Nevertheless, Ms. Mendoza continues to drive so that she can get her children to medical appointments and to buy clothes and food for her family.
100. Ms. Mendoza knows she is taking a risk driving on a suspended driver’s license, but she feels as though she has no other choice because she is too poor to pay enormous sums of traffic debt and relies on her vehicle to provide necessities for herself and her family.
ii. Gloria Bermudez 101. Gloria Bermudez is a 36-year-old resident of Portland, Oregon. She is a single mother with four children, ages 11, 8, 7 and 6. She is the sole wage earner for her family. Ms.
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Bermudez works as a cook at a restaurant in a shopping mall. She earns $14 per hour or approximately $1,600 per month. She also receives approximately $420 per month in food stamps to help feed her family.
102. Ms. Bermudez struggles to keep up with her electric, gas, and phone bills every month. Frequently, by the end of the month, she seeks free food at pantries to put food on the table.
103. Ms. Bermudez’s driver’s license is currently suspended because she is unable to pay a total of $2,812.38 in traffic debt to two courts, Multnomah County Circuit Court and Washington County Justice Court.
104. Ms. Bermudez owes $1,902.38 to Multnomah County Circuit Court related to three different traffic violation cases.
105. In one of the cases, she was cited on February 22, 2003 for failing to obey a traffic control device. The ticket – originally for $175 – grew to $299.16 with additional court fees and costs. Initially, her license was suspended, in May 2003, because she failed to appear at her arraignment. Her debt was sent to collections. The court later set her up on a payment plan and her license was reinstated on May 12, 2010. However, she couldn’t afford to keep up with these $50 payments, so the DMV suspended her license again – this time based on her failure to pay her traffic debt – on September 14, 2012.
106. In another case, she was cited on July 1, 2013 for failing to use proper child seats for her two children. This was originally a $120 ticket, but grew to $237 with added fees. The DMV suspended her license due to her inability to pay that amount on October 7, 2013.
107. At the time that Ms. Bermudez was cited for improper use of child seats, she was
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also cited for driving on a suspended license, driving with expired tags, and driving while uninsured. In this related case, Ms. Bermudez owes $1,306 in unpaid court fines and fees to Multnomah County Circuit Court for failing to appear at her arraignment. The DMV suspended her driver’s license in that case on January 21, 2014.
108. Ms. Bermudez estimates that, during the past ten years, she has paid hundreds of dollars in payments to Multnomah County Circuit Court, but she always fell behind on these payments because she did not have enough money to keep up.
109. Ms. Bermudez also owes Washington County Justice Court a total of $910 for traffic debt.
110. In one of the cases, she was cited on July 2, 2012 for driving while operating a cell phone, driving without proof of insurance, and for driving with a suspended license. Due to her inability to pay $470 in fines and fees for that case, the DMV suspended her driver’s license on October 7, 2013.
111. In her 2012 case, Ms. Bermudez was offered a payment plan of $75 per month to pay her traffic debt. However, she was not able to make her initial payment on August 24, 2012 because she had recently given birth to a premature baby and had no money to spare. She handdelivered a letter to the court explaining these circumstances. The court did not offer to eliminate or further reduce her payments under the plan.
112. More recently, on February 24, 2018, Ms. Bermudez was stopped by the police while driving home late after work. She was cited for driving on a suspended license. Ms. Bermudez owes another $440 for this traffic violation. She received a letter, on April 6, 2018, from Washington County Justice Court informing her that if she is unable to pay this amount or
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begin making payments by April 20, 2018, the court would send a notice of suspension to the DMV. Ms. Bermudez cannot afford to pay this debt either. She fears receiving another notice by mail from the DMV informing her that her driver’s license will be suspended for failing to pay this additional traffic debt.
113. The DMV never considered whether Ms. Bermudez could afford to pay her traffic debt before suspending her license.
114. DMV has not offered Ms. Bermudez any opportunity to reinstate her license based on her inability to pay.
115. If Ms. Bermudez could afford to pay down her court debts, she would. However, her poverty makes it impossible for her to apply any amount of money towards this debt.
116. Ms. Bermudez has continued to drive despite the risk that she may be cited again for driving on a suspended license. Her workplace is about seven miles away from her home. It takes her 25 minutes to drive to work. It would take her about an hour to get to work on city buses.
117. Ms. Bermudez also drives her four children to school, which is a 5- to 10-minute car ride. The alternative, that her children board a school bus at 6:45am to take an hour-long bus ride to their school, would result in her young children becoming sleep-deprived, jeopardizing their ability to learn at school, as well as increasing their chances of numerous health problems.14 Ms. Bermudez also drives to buy groceries at the store and to take her children to medical appointments.
14 See https://www.nichd.nih.gov/health/topics/sleep/conditioninfo/sleep-deprivation; See also https://www.cdc.gov/healthyschools/sleep.htm.
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118. Ms. Bermudez knows she risks getting more traffic violations for driving on a suspended license, which also means amassing more court debt. However, she feels as though she has no other choice to maintain her job and transport her family.
iii. Jeremy Chase 119. Jeremy Chase is a 37-year-old resident of Vancouver, Washington. Mr. Chase was a resident of Oregon from 2006 to 2018. Most recently, he lived in Milwaukie, Oregon. 120. Mr. Chase is a disabled veteran of the United States Air Force. He began receiving Social Security Disability Insurance (“SSDI”) in 2009. His only income is $817 per month in SSDI. He also receives approximately $190 per month in food stamps. 121. In early 2006, Mr. Chase decided to enroll as a journalism student at Portland State University. 122. Mr. Chase’s license is currently suspended because he owes traffic debt to Beaverton Municipal Court. Mr. Chase estimates that he owes $1,500 to that court. 123. Until recently, Mr. Chase also owed traffic debt to Gilliam County Justice Court and Sherman County Justice Court. His debts to these three courts initially totaled more than $3,800 and stemmed from traffic citations issued on four separate dates between 2006 and 2008, while he was a low-income student. 124. For each citation, Mr. Chase appeared in court and explained to the judge that he had quit his job to enroll in school and could not afford to pay the fines and fees. Each judge referred Mr. Chase to a court administrator to discuss payment options. 125. Mr. Chase’s first citation was in Gilliam County, Oregon. The Gilliam County Justice Court administrator explained that payment plans were available, and that Mr. Chase
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could elect to repay his debt over six or twelve months. Mr. Chase responded that he was a lowincome student and could not afford a payment of more than $100, the lowest monthly payment offered. He proposed repayment over twenty-four months instead. The court administrator told him that one year was the longest available repayment term.
126. Mr. Chase was given the same repayment options in Sherman County Justice Court and Beaverton Municipal Court. Each time, he told the court administrator he could not afford to repay the debt in twelve months; each time, the court administrator responded that twelve months was the longest available repayment term.
127. Mr. Chase financed his education with Pell Grants, government loans, and work study. After paying tuition, he struggled to find affordable housing and pay for books, food, and other necessities. He could not afford the lowest available monthly payment to any single court, much less to all three courts.
128. Gilliam County Justice Court, Sherman County Justice Court, and Beaverton Municipal Court all eventually referred Mr. Chase’s debts to private collections agencies.
129. The DMV suspended Mr. Chase’s license because of his failure to pay his traffic debt.
130. The DMV never considered whether Mr. Chase could afford to pay his traffic debt, or whether he had been granted an opportunity to avoid suspension by establishing his indigence and/or entering into a payment plan he could afford, before suspending his license.
131. The DMV has not offered Mr. Chase, or made sure that he has been offered, any opportunity to reinstate his license based on his inability to pay.
132. Since 2013, Mr. Chase has been paying what he can afford toward his traffic debt.
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133. He began with the Gilliam County debt. He made $50 monthly payments to Northwest Collections Agency, the private debt collector to which Gilliam County Justice Court assigned his debt. After a year and a half of consecutive payments, that agency discharged the debt.
134. In 2015, Mr. Chase began making $50 monthly payments toward his debt in Sherman County. After seven months of consecutive payments, that debt was discharged.
135. After repaying the Gilliam County and Sherman County debts, Mr. Chase went to Beaverton Municipal Court and requested a hearing before a judge regarding his traffic debt. He knew that the DMV would lift the suspension on his driver’s license if the court certified that he was making payments on a payment plan. Mr. Chase wanted a judge to review his income and approve a payment plan he could afford.
136. A court administrator told Mr. Chase that because the debt had been referred to a private collections agency, the debt was “out of house” and he could not see a judge about a payment plan. The administrator told him that, in order to get his license suspension lifted, the private collections agency would have to certify to the court that Mr. Chase was making payments on a payment plan.
137. Mr. Chase called Alliance One, the private collections agency, to ask about entering a payment plan. Alliance One offered two repayment terms: six months and one year. The monthly payment on a twelve-month repayment term was more than $100 per month. Mr. Chase cannot afford monthly payments in that amount.
138. Mr. Chase told Alliance One that he is indigent and that his only source of income is SSDI. Alliance One refused to offer a plan with a lower monthly payment.
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139. Since January 2018, Mr. Chase has been making monthly payments to Alliance One on his debt to Beaverton Municipal Court. He paid $75 per month in January, February, and March 2018, and he has paid $50 per month since then. His license remains suspended because Alliance One will not certify to the court that Mr. Chase is making payments on a payment plan.
140. It is very difficult for Mr. Chase to make $50 monthly payments because he survives on a fixed income of $817 per month, plus food stamps. He estimates that it will take him two and a half years to discharge the debt with Alliance One.
141. If Mr. Chase had an opportunity now, or at any time since his license was suspended, to get his suspension lifted by showing that he cannot afford to pay his traffic debt, he would take it.
iv. Cekais Toni Ganuelas 142. Cekais Toni Ganuelas is a 27-year-old resident of Mission, Oregon, which is about six miles outside of Pendleton. She and her 8-year-old daughter live in a room they rent from a friend. 143. Until recently, Ms. Ganuelas worked as a bartender at a restaurant in Pendleton. She worked about twenty hours per week and earned minimum wage plus tips, or about $400 per week. She was fired in late July 2018 when she failed to show up for work due to transportation difficulties. Since Ms. Ganuelas lost her job, her only source of income is $140 per month from teaching yoga. She does not currently receive food stamps or cash assistance. 144. Ms. Ganuelas is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation. The Tribes operate a shuttle service between Pendleton and Mission, Oregon. Ms. Ganuelas is able to use the shuttle some days. However, the shuttle runs only
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between about 8 a.m. and 5 p.m. Monday through Saturday. The shuttle was not a viable option for Ms. Ganuelas when she was working as a bartender because her shifts began and ended at irregular hours, including late at night. In addition, the shuttle stopped on the opposite side of a busy four-lane highway, requiring her to make a dangerous crossing on foot to get to work.
145. In 2012, Ms. Ganuelas was cited for failure to display plates. She was unable to pay her $150 ticket, so the Pendleton Municipal Court notified the DMV. The DMV suspended her driver’s license on July 16, 2012.
146. Since Ms. Ganuela’s license suspension in 2012, she has received multiple additional suspension notices for failure to pay traffic debt.
147. Most recently, the DMV sent Ms. Ganuelas a notice of suspension on October 27, 2016, notifying her that her license would be suspended effective December 25, 2016. That suspension was in connection with her failure to pay a $195 speeding ticket in Umatilla County Circuit Court.
148. Ms. Ganuelas has also been cited at least three times for driving with a suspended license.
149. The DMV never considered whether Ms. Ganuelas could afford to pay her traffic debt before suspending her license.
150. DMV has not offered Ms. Ganuelas any opportunity to reinstate her license based on her inability to pay.
151. Ms. Ganuelas believes that she currently owes in excess of $750 in traffic debt to three courts: Umatilla County Circuit Court, Pendleton Municipal Court, and Lower Kittitas County District Court in Washington State.
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152. When Ms. Ganuelas can afford to, she has made payments to the courts to pay for her traffic debt. Currently, it is impossible for her to pay any amount of money toward her traffic debt. Without a steady source of income, paying any amount toward traffic debt would make it even harder to keep herself and her daughter clothed, fed, and housed.
153. Not having a valid driver’s license makes it difficult for Ms. Ganuelas to provide for herself and her daughter. In order to buy groceries, clothes, necessary household goods, she must find a ride into Pendleton, which cost of at least $10 each way by taxi.
154. Ms. Ganuelas’ daughter loves to play soccer and wants to play with the Pendleton Youth Soccer Association. That group has strict rules about parental involvement and being on time for practices and games. Because Ms. Ganuelas has to rely on friends to get to Pendleton, her daughter has not been able to play on a soccer team for the past two years.
155. Ms. Ganuelas has also missed many events at her daughter’s school because her license is suspended. In December 2017, she was unable to attend an awards ceremony at her daughter’s school, where he daughter received an award, because she could not drive there.
156. Family is very important to Ms. Ganuelas and her extended family lives in Alaska, Washington, and other parts of Oregon. Not being able to drive with a valid license means she cannot travel to family functions out of state. Ms. Ganuelas’ grandparents, who are more than eighty years old, live in Yakima, Washington, 150 miles away from my home. She laments not being able to visit them and to attend important family events at their home because her license is suspended.
157. Ms. Ganuelas knows the consequences of driving without a valid license. To return home after her grandmother’s 84th birthday in Yakima in July 2015, Ms. Ganuelas took
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the risk of driving her mother’s car so that she could make it to work on time. She had no other transportation option. She was stopped for speeding and for driving on a suspended license.
158. Ms. Ganuelas has been trying to find work, but having a suspended license is a hurdle. For the past three weeks, she have been looking for a job through the Tribal Employment Rights Office. One of the questions on the sign-in form is “do you have a valid license?” Many of the jobs also require a driver’s license. ODOT was hiring flaggers through TERO, but she did not qualify because her license is suspended. It is also difficult for her to follow up on applications or attend interviews without being able to drive.
159. If Ms. Ganuelas had an opportunity now, or at any time since her license has been suspended, to get her suspensions lifted by showing that she cannot afford to pay her traffic debt, she would take it.
160. Every day without a driver’s license makes it hard for Ms. Ganuelas to shop for groceries, provide for her daughter, and find a job.
v. Karl Wade Roberts 161. Plaintiff Karl Wade Roberts is 57-year-old resident of Baker City, Oregon. Mr. Roberts lives with his wife. He and his wife each receive $562 per month in social security income. They do not receive income from any other source. Their combined monthly income of $1,124 places them below the federal poverty line. 162. Mr. Roberts has been unable to work since March 2003 due to the combined effects of injuries from an automobile accident in 1984 and a traumatic brain injury in 2003. 163. On December 30, 1994, DMV suspended Mr. Roberts’s license after he failed to pay a traffic ticket. His driving privileges have not been restored since then.
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164. During the last twenty-five years, Mr. Roberts has received at least twenty additional notices of suspension based in full or in part upon his failure to pay tickets for minor traffic violations, such as driving while suspended or illegal display of plates.
165. Mr. Roberts currently owes traffic debt for approximately 11 unpaid traffic tickets. He owes $3,580 in fees and fines to the Baker County Justice Court. He also owes $465 to a collection agency on a traffic debt assigned to that agency by the Arlington County Justice Court.
166. Before becoming disabled, Mr. Roberts made payments to the Baker County Justice Court, hoping to get his license reinstated. Since then, he has acquired more traffic debt, making it impossible for him to make the payments with his limited income.
167. For Mr. Roberts’s amount of traffic debt, the Baker County Justice Court will not approve a payment plan with a monthly payment of less than $50 per month. He cannot pay $50 per month toward those debts.
168. Mr. Roberts has been jailed for not paying traffic fines and fees that he could not afford to pay.
169. The DMV never considered whether Mr. Roberts could afford to pay his traffic debt before suspending his license.
170. The DMV has not offered Mr. Roberts any opportunity to reinstate his license based on his inability to pay.
171. Mr. Roberts’ wife does not have a driver’s license and requires frequent transportation to medical appointments due to her health.
172. Mr. Roberts used to ride his bicycle, even during Baker City’s harsh winters, to
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purchase groceries and other necessities for his family. As he has aged, it has become difficult for him to carry groceries by bike.
173. Mr. Roberts is an enrolled member of the Western Cherokee Nation of Arkansas and Missouri. As part of his Native heritage, he grew up fishing and hunting. Loss of driving privileges severely diminished his ability to enjoy these important cultural and recreational activities.
174. Mr. Roberts’ adult children live in Boise, Idaho and St. Louis, Missouri. He cannot afford to fly to see them. Without a license, he rarely gets to visit them.
175. There is very little public transportation where Mr. Roberts lives. 176. Mr. Roberts continues to drive on a limited basis. He lives in fear, knowing that he risks accumulating more traffic debt for driving with a suspended license, and additional jail time, if he receives additional traffic tickets that he cannot afford to pay. However, he needs to drive to provide for his wife’s and his own basic needs.
vi. Rebecca Heath 177. Plaintiff Rebecca Heath is 60-year-old resident of Pendleton, Oregon. 178. Ms. Heath receives $750 per month in SSDI and $189 per month in food stamps. 179. Ms. Heath is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation. Each quarter, she receives $400 in casino dividends. In the months she receives a casino dividend check, her SSDI check is reduced by $400. 180. Ms. Heath does not receive income from any other source. Her monthly income of $939 places her below the federal poverty line. 181. Ms. Heath suffers from a debilitating back injury. She also fought a years-long
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battle with a tuberculosis. Due to these health problems, she was homeless for seven years, from 2010 to 2017.
182. Ms. Heath was found disabled and began receiving SSDI in 2017. Prior to that, she attempted to make ends meet by collecting cans, selling beadwork, and performing Native dance. She has not been able to maintain regular employment since 1997.
183. Ms. Heath’s driver’s license was originally suspended on September 29, 1995, after she failed to appear on an out-of-state traffic ticket. Her driving privileges have not been restored since then.
184. Over the past 23 years, Ms. Heath has received approximately six additional notices of driver’s license suspension from the DMV as a result of her inability to pay her traffic debt. At the time of each suspension, she was too poor to afford to pay the traffic debt.
185. Because more than 20 years have passed since Ms. Heath’s license was suspended for failure to pay traffic debt, she is eligible for reinstatement. However, she cannot reinstate her license because she cannot afford DMV’s testing and reinstatement fees of $149.
186. Ms. Heath has been jailed for paying traffic fines and fees that she could not afford to pay.
187. The DMV never considered whether Ms. Heath could afford to pay her traffic debt before suspending her license.
188. The DMV has not offered Ms. Heath any opportunity to reinstate her license based on her inability to pay.
189. The DMV does not waive or reduce reinstatement fees based on inability to pay. 190. Being unable to drive made it very difficult for Ms. Heath to find and maintain
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regular employment. At her last regular job, in 1997, she had to walk 5.5 miles each way to get to work without driving.
191. Due to her inability to drive, Ms. Heath has had to pay expensive cab fares; walk long distances in extreme weather; and take slow public transit systems. She has missed important family and cultural events such as funeral services and tribal gatherings. During the seven years she was homeless, Ms. Heath’s inability to drive meant that she had to carry all her possessions with her in a backpack.
192. Plaintiffs Mendoza, Bermudez, Roberts and Heath, through their attorney, sent a letter to Administrator McClellan of the DMV on August 14, 2018, requesting that their driver’s licenses be reinstated, that their reinstatement fees be waived, and that the agency stop its practice of suspending driver’s licenses for non-payment of traffic debt. Alternatively, these Plaintiffs requested that the DMV provide an opportunity, through a hearing, to lift their suspensions based on their inability to pay their traffic debt.
193. The DMV denied Plaintiffs’ requests in a letter, dated August 21, 2018. V. CLASS ACTION ALLEGATIONS
194. This action is brought and may properly be maintained as a class action pursuant to Federal Rules of Civil Procedure 23(a)(1)-(4) and 23(b)(2).
195. This lawsuit satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
A. Numerosity – Fed. R. Civ. P. 23(a)(1) 196. The class in this suit is so numerous that joinder of all of its members is
impracticable. During the last ten years, the Oregon DMV suspended Oregonians’ driver’s
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licenses 334,338 times for failure to pay traffic debt. In 2017 alone, the DMV issued 32,280 license suspensions for failure to pay traffic debt. Many of the individuals whose driver’s licenses were suspended are, like the named plaintiffs, low-income people who are not paying traffic debt solely because they cannot afford to.
B. Commonality – Fed. R. Civ. P. 23(a)(2) 197. The relief sought is common to all class members, and common questions of law
and fact exist as to all class members. All of the named Plaintiffs have had their driver’s licenses suspended for non-payment of traffic debt. All of the Plaintiffs were and are unable to pay because of their poverty.
198. The DMV automatically suspends driver’s licenses for failure to pay court fees and fines as mandated under Or Rev. Stat. § 809.416 and Or. Rev. Stat. § 809.210(4)(b). The requirements of the suspension statutes apply equally to class members, and the resolution of these legal and factual issues will determine whether all class members are entitled to the relief they seek.
199. The named Plaintiffs seek relief concerning whether the DMV’s policy and practice of suspending the driver’s licenses of those who are too poor to pay their traffic debt violates the rights of class members. Plaintiffs also seek relief mandating that Defendants end their policy and practice so that the constitutional rights of the class will be protected in the future.
200. The questions of law and fact common to the class predominate over any questions affecting solely individual members of the action, and include:
a. Whether Defendants’ policy and practice of suspending driver’s licenses for non-
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payment of traffic debt without considering the license-holder’s ability to pay deprives Plaintiffs and class members of substantive due process and equal protection, in violation of the Fourteenth Amendment to the United States Constitution; b. Whether Defendants’ wealth-based suspension scheme violates procedural due process because it does not provide an ability-to-pay hearing; c. Whether Defendants’ wealth-based suspension scheme violates equal protection and substantive due process because indigent traffic debtors are treated differently than traffic debtors who can afford to pay their traffic violation fines to avoid driver’s license suspensions; d. Whether Defendants violate the Equal Protection Clause by treating indigent traffic debtors differently from other similarly situated indigent debtors; e. Whether Plaintiffs and members of the class are entitled to declaratory relief; and f. Whether Plaintiffs and class members are entitled to injunctive relief. C. Typicality – Fed. R. Civ. P. 23(a)(3) 201. Plaintiffs’ claims are typical of the class. Plaintiffs, like all other members of the class, are Oregon residents who had their driver’s licenses suspended for their inability to pay their traffic debt to Oregon courts. They are all affected by the Defendants’ suspension of their driver’s licenses and continue to risk further traffic violations – and traffic debt – by driving with suspended driver’s licenses. 202. If the named Plaintiffs succeed in their claim that the Defendant’s policy and practice of suspending driver’s licenses of residents who are too poor to pay traffic debt violates
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their constitutional rights, that ruling would benefit every class member. D. Adequacy – Fed. R. Civ. P. 23(a)(4) 203. Plaintiffs will fairly and adequately protect the interests of the class. There are no
known conflicts among class members, all of whom have a similar interest in asserting their constitutional rights.
E. Rule 23(b) 204. This case is appropriate for class certification under Fed. R. Civ. P. 23(b)(2)
because Defendants’ policy and practice of suspending driver’s licenses for non-payment of traffic debt warrants declaratory and injunctive relief that is appropriate to the class as a whole. A declaration and injunction stating that the DMV cannot suspend driver’s licenses when someone is too poor to pay their traffic debt would provide relief to every member of the class.
205. Concentrating this litigation in one forum, as opposed to separate individual cases in various courts, will promote judicial economy, consistency and parity among the claims of individual class members. Allowing this lawsuit to proceed as a class action will permit the class of similarly situated persons to prosecute their common claims in a single forum simultaneously and efficiently.
206. Plaintiffs are not aware of any difficulty that could be encountered in the management of this action that would preclude its maintenance as a class action.
VI. FIRST CLAIM FOR RELIEF Fourteenth Amendment to the U.S. Constitution (Due Process/Equal Protection Bearden
and Griffin Violation) 207. Plaintiffs incorporate by reference the allegations above as if fully set forth
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herein. 208. The Due Process Clause of the Fourteenth Amendment provides that “[n]o State
shall … deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, §1.
209. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.”
210. Griffin v. Illinois, 351 U.S. 12 (1956), and its progeny, establishes the principle that people should not be penalized just for being poor. Under Griffin, states must provide an evaluation of ability to pay to assess an individual’s indigence prior to any taking any measures that could result in any additional punishment beyond that imposed upon financially solvent individuals.
211. The Fourteenth Amendment’s Due Process and Equal Protection Clauses prohibit 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).
212. Under Griffin and Bearden, DMV’s automatic suspension of driver’s licenses for nonpayment of traffic debt without any inquiry into or consideration of the license holder’s ability to pay violates the right to substantive due process and equal protection.
VII. SECOND CLAIM FOR RELIEF Fourteenth Amendment to the U.S. Constitution (Equal Protection Under Strange)
213. Plaintiffs incorporate the allegations above as if fully set forth herein. 214. Defendants’ policy and practice of suspending driver’s licenses as a means of debt
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collection for state courts from people who are too poor to pay their traffic debts, but not suspending the driver’s licenses of other indigent judgment debtors, violates the right to equal protection under the law guaranteed by the Fourteenth Amendment to the United States Constitution.
215. Under James v. Strange, 407 U.S. 128 (1972), the Defendants’ policy and practice of suspending driver’s licenses under ORS § 809.416 violates the equal protection clause because it empowers the DMV to treat indigent traffic debtors worse than traffic debtors who committed bicycle, pedestrian, or parking offenses, private debtors with delinquent credit card debt, and child support debtors. In Oregon, only indigent traffic debtors are punished with driver’s license suspensions without any inquiry into or consideration of their ability to pay their traffic debt.
VIII. THIRD CLAIM FOR RELIEF Fourteenth Amendment to the U.S. Constitution (Procedural Due Process – Failure to
Provide Pre- and Post-Deprivation Hearings) 216. Plaintiffs incorporate the allegations above as if fully set forth herein. 217. Plaintiffs have protected property and liberty interests in their driver’s licenses and their ability to drive legally. Defendants violate Plaintiffs’ procedural due process rights by suspending their licenses without affording them a pre-suspension hearing to determine whether they are able to pay their traffic debt. Defendants also violate Plaintiffs’ procedural due process rights by not affording them a post-suspension hearing to determine if they are unable to pay their traffic debt. 218. Plaintiffs are entitled to prospective relief under 42 U.S.C. § 1983, because they
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have demonstrated that Defendants, acting under color of state law, caused them to suffer a violation of a right secured by the Constitution. See West v. Atkins, 487 U.S. 42, 48 (1988).
IX. DEMAND FOR JURY TRIAL 219. Plaintiffs hereby demand a trial by jury.
X. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and all members of the proposed class, pray for: (a) An order designating this action as a class action; (b) A declaration that Defendants’ practices with respect to suspensions of driver’s licenses as alleged herein have violated and continue to violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution as to the class; (c) An order and judgment preliminarily and permanently ordering Defendants, their subordinates, agents, employees, representatives, and all others acting or purporting to act on their behalf, from suspending driver’s licenses for unpaid traffic debt against Plaintiffs and class members until such time as the DMV and the State of Oregon implement a system that complies with the United States Constitution; (d) An order and judgment preliminarily and permanently ordering Defendants to remove Plaintiffs’ and class members’ suspensions for non-payment of traffic debt that were effected prior to the date of judgment in this matter and enjoining the Defendants from requiring the Plaintiffs and class members to pay reinstatement fees as a condition of reinstatement; (e) An award of reasonable attorney fees pursuant to 42 U.S.C. § 1988, and costs and disbursements incurred herein;
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(f) Prejudgment interest; and (g) Such other and further legal and equitable relief as this Court deems just and proper.
DATED this 16th day of October 2018.
OREGON LAW CENTER
/s/ Marisa Samuelson Emily Teplin Fox, OSB No. 121720 efox@oregonlawcenter.org Marisa Samuelson, OSB No. 144234 msamuelson@oregonlawcenter.org Beth Englander, OSB No. 980190 benglander@oregonlawcenter.org Kelsey Heilman, OSB No. 140348 kheilman@oregonlawcenter.org 522 SW Fifth Ave., Suite 812 Portland, OR 97204 (503) 473-8310 Jonathan M. Dennis, OSB 146256 jdennis@oregonlawcenter.org 35 SE Fifth Ave., Suite 1 Ontario, OR 97914 (541) 889-3296 Of Attorneys for Plaintiffs
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 Case 3:18-cv-01634-HZ Document 40 Filed 12/12/18 Page 1 of 63

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

CINDY MENDOZA; GLORIA BERMUDEZ; JEREMY CHASE; CEKAIS TONI GANUELAS; REBECCA HEATH; and KARL WADE ROBERTS, on behalf of themselves and all others similarly situated,

No. 3:18-cv-01634-HZ

Plaintiffs,

v.

MATTHEW GARRETT, in his official capacity as Director of the Oregon Department of Transportation; TAMMY BANEY, in her official capacity as Chair of the Oregon Transportation Commission; SEAN O'HOLLAREN, in his official capacity as Member of the Oregon Transportation Commission; BOB VAN BROCKLIN, in his official capacity as Member of the Oregon Transportation Commission; MARTIN CALLERY, in his official capacity as Member of the Oregon Transportation Commission; and TOM MCCLELLAN, in his official capacity

OPINION & ORDER

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as Administrator of Driver and Motor Vehicles Division, Oregon Department of Transportation,
Defendants.
Emily Teplin Fox Marisa Samuelson Beth Englander Kelsey Heilman OREGON LAW CENTER 522 S.W. Fifth Ave., Suite 812 Portland, Oregon 97204
Jonathan M. Dennis OREGON LAW CENTER 35 S.E. Fifth Ave., Suite 1 Ontario, Oregon 97914
Attorneys for Plaintiffs
Ellen Rosenblum ATTORNEY GENERAL Renee Stineman ATTORNEY-IN-CHARGE Beth Andrews ASSISTANT ATTORNEY GENERAL Sadie Furzley ASSISTANT ATTORNEY GENERAL Department of Justice 100 S.W. Market Street Portland, Oregon 97201
Attorneys for Defendants
HERNANDEZ, District Judge:
Plaintiffs bring this action on behalf of themselves and a putative class, challenging
Oregon's practice of suspending an individual's driver's license for failure to pay "traffic debt."1
1 The term "traffic debt" is used by the parties to refer to fines imposed for traffic violations as well as any additional fees or costs associated with a fine. See, e.g., Or. Rev. Stat. §§ 1.202(1), (2), 809.267, 809.380 (fee added whenever a court gives a defendant a period of
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More specifically, the six named Plaintiffs, each of whom lives on an extremely limited income and has had a driver's license suspended because of the inability to pay one or more traffic violation fines, contend that suspending a driver's license for failure to pay traffic debt absent an assessment of an individual's ability to pay violates the Fourteenth Amendment of the United States Constitution. Defendants are the Director of the Oregon Department of Transportation (ODOT), members of the Oregon Transportation Commission, and the Administrator of ODOT's Driver and Motor Vehicles Division. Collectively, they are "the DMV." Simultaneously with filing the Complaint, Plaintiffs moved for a preliminary injunction and to certify the class. This Opinion addresses the preliminary injunction motion only. At oral argument on that motion, I deferred any further briefing on the class certification motion, and any other activity in the case, until resolution of the preliminary injunction motion.
Plaintiffs bring three claims, each alleging a violation of either due process, equal protection, or both. Because Plaintiffs fail to demonstrate a likelihood of success on the merits as to any of their claims, I deny the motion.
BACKGROUND Oregon, like other states, has a statutory scheme in which the failure to pay a courtadjudicated traffic violation fine can result in the suspension of a driver's license. Recently, some states have addressed the practice through legislation. In California, for example, according to a Los Angeles Times article cited by Plaintiffs, the California Legislature passed a bill, signed by the Governor in June 2017, preventing the suspension of driver's licenses because of unpaid
time to pay a financial obligation after its imposition; fee added when court uses a private collection agency or revenue department to recover debt; fee added when a court issues a notice of suspension; requiring fee for post-suspension reinstatement). 3 - OPINION & ORDER

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fines.2 Other states are in litigation over the practice. E.g., Fowler v. Johnson, No. 17-11441,
2017 WL 6379676 (E.D. Mich. Dec. 14, 2017) (challenge to Michigan statutes allowing
suspension of driver's licenses of individuals who fail to pay court-ordered fines, costs, fees, and
assessments resulting from traffic violations) ("Fowler I")3; Robinson v. Purkey, No. 3:17-cv-
1263, 2017 WL 4418134 (M.D. Tenn. Oct. 5, 2017) (challenge to Tennessee statutes allowing
suspension of driver's licenses for nonpayment of fines or costs imposed for conviction of driving
offenses) ("Robinson I").4 This case, however, involves Oregon's statutory scheme. Thus, I
2 See http://www.latimes.com/local/lanow/la-me-ln-driver-license-fees-20170629-story.html (also noting that the law did not apply retroactively and that a related bill which would allow lowincome individuals who cannot afford their traffic tickets to ask a judge to lower the fine or substitute the fine with community service, was advancing through the California Legislature).
Plaintiffs also assert that Maine has abolished the practice. Pls.' Mot. for Pre. Inj. ("Pls. Mot.") 41 n.12, ECF 2. However, the article they rely on indicates that the legislation in Maine concerned criminal fines for "non-driving-related violations." See https://bangordailynews.com/2018/07/10/politics/maine-drivers-will-not-have-licenses-suspende d-for-failing-to-pay-fines (reporting that Maine lawmakers were "putting an end to the practice of automatic drivers' license suspensions for failing to pay fines for most non-driving-related violations"; further describing the previous practice as: "failure to pay a fine for a criminal offense and your driver's license is automatically suspended.").
3 Fowler I granted in part and denied in part the plaintiffs' preliminary injunction motion. The defendants appealed. No. 17-2504 (6th Cir. Dec. 19, 2017). The district court denied the defendants' request for a stay pending appeal. 2017 WL 6540926 (E.D. Mich. Dec. 19, 2017) ("Fowler II"). In February 2018, the Sixth Circuit remanded the case for the district court to address the plaintiffs' standing, and the district court issued an opinion and order addressing that issue on April 11, 2018. 2018 WL 1737122 (E.D. Mich. Apr. 11, 2018) ("Fowler III").
4 In an October 5, 2017 decision, the court in Robinson granted a temporary restraining order to the plaintiffs who challenged Tennessee's practice of suspending an individual's driver's license for failure to pay "traffic debt." 2017 WL 4418134 ("Robinson I"). In a later decision issued in June 2018, the court denied in part the defendants' motion to dismiss, granted the class certification motion, and scheduled a hearing at a later date on the preliminary injunction motion. 326 F.R.D. 105 (M.D. Tenn. 2018) ("Robinson II"), appeal filed, No. 18-6121 (6th Cir. Oct. 24, 2018). Meanwhile, the same district court judge handling the Robinson case issued a decision in
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begin there before turning to other evidence in the record submitted in support of, and in opposition to, the motion. I. Oregon's Statutory Scheme
The Oregon Vehicle Code defines "traffic violation" as "a traffic offense that is designated as a traffic violation in the statute defining the offense, or any other offense defined in the Oregon Vehicle Code that is punishable by a fine but that is not punishable by a term of imprisonment." Or. Rev. Stat. § (O.R.S). 801.557; see also O.R.S. 153.008(1)(a), (b) (providing generally that an "offense" is a "violation" if it is "designated as a violation by the statute defining the offense," or the "statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment.").
Violations are classified into categories. O.R.S. 153.012 (designating categories as Class A, Class B, Class C, and Class D, as well as "unclassified violations as described in O.R.S. 153.015," and "[s]pecific fine violations as described in O.R.S. 153.015."). "The penalty for committing a violation is a fine." O.R.S. 153.018(1). There are maximum, presumptive, and minimum fines for each category of violation. O.R.S. 153.018(2) (maximum fines); O.R.S. 153.019 (presumptive fines); O.R.S. 153.020 (increasing presumptive fines for violations
a related case challenging Tennessee's practice of suspending an individual's driver's license for failure to pay "court debt." Thomas v. Haslam, 303 F. Supp. 3d 585 (M.D. Tenn. 2018) (denying motions to dismiss, ordering further briefing on summary judgment motions, granting class certification motion) ("Thomas I"). In July 2018, the district court in the Thomas case issued a decision granting summary judgment to plaintiffs and denying summary judgment to defendants. 329 F. Supp. 3d 475 (M.D. Tenn. 2018) ("Thomas II"), appeal filed, No. 18-5766 (6th Cir. July 27, 2018). 5 - OPINION & ORDER

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committed in a highway work zone, school zone, or safety corridor); O.R.S. 153.021 (minimum fines). The Chief Justice of the Oregon Supreme Court is required to establish a uniform fine schedule for violations prosecuted in circuit courts. O.R.S. 153.800(4)(b). Courts other than circuit courts are required to establish schedules of the amounts of penalties to be imposed for first, second, and subsequent violations, designating each violation specifically or by class. O.R.S. 153.800(4)(a).
When law enforcement officers issue a citation and summons to a driver for a traffic violation, certain information must be included as specified in O.R.S. 153.045-153.051. This includes the amount of the presumptive fine, if there is one for the violation. O.R.S. 153.051(4) (requirements of the summons). The summons must notify the person that a monetary judgment may be entered for up to the maximum amount of fines, restitution, and other costs allowed by law if the person fails to make all required appearances at proceedings. O.R.S. 153.051(5). And, the summons must notify the person that if he or she pleads no contest and pays the presumptive fine, the person may submit an explanation of the circumstances of the violation and the court may consider that explanation in establishing the amount of the fine, but the court cannot impose a fine less than the statutory minimum. O.R.S. 153.051(7). The summons must also notify the person that if the person pleads not guilty and requests a trial, the fines still cannot be less than the minimum unless the person is found not guilty. O.R.S. 153.051(8).
A person who has been issued a citation must make an appearance in person at the time indicated in the citation/summons, request a trial, or deliver payment of the presumptive fine to the court. O.R.S. 153.061(1), (3). Circuit courts, municipal courts, and justice courts adjudicate traffic violations. In cases where the defendant pleads no contest by delivering payment of the
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presumptive fine to the court under O.R.S. 153.061(3), the amount of the fine may not exceed the presumptive fine. Id. Additionally, a judge may suspend operation of any part of a judgment entered under the "Violations and Fines" chapter of the Oregon statutes upon condition that the defendant pay the nonsuspended portion of a fine within a specified period of time. O.R.S. 153.090(4).
When a traffic violation fine remains unpaid, a court may use a private collection agency to seek recoupment of the debt or refer the debt to the Oregon Department of Revenue (ODOR). O.R.S. 1.197(1). In addition to these options, "[a] court may . . . (a) issue a notice of suspension to the [DMV] that directs the department to implement procedures under ORS 809.416[,] or (b) [o]rder a defendant's driving privileges restricted." O.R.S. 809.210(1). This case concerns only (a), the issuance of the notice of suspension. Although an unpaid traffic violation fine allows a court to send a suspension notice to the DMV, a court is prohibited from sending a notice of suspension for those who have failed to pay fines for bicycle, pedestrian, or parking offenses. O.R.S. 809.210(7).
Upon receipt of the notice of suspension from a court, suspension of a driver's license by the DMV is mandatory. A person "is subject to suspension under ORS 809.415(4) if the department receives a notice of suspension from a court under ORS 809.210 indicating that the person has failed or refused to pay a fine[.]" O.R.S. 809.416(2). The "department shall suspend driving privileges when provided under ORS 809.416." O.R.S. 809.415(4) (emphasis added); see also O.R.S. 809.210(4)(b) (providing that if the court issues a notice of suspension that directs the DMV to implement procedures under O.R.S. 809.416, the DMV shall take action on the suspension as provided under O.R.S. 809.416).
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A person is subject to suspension under O.R.S. 809.416(2) until one of the following occurs: (1) the person presents the department with a notice of reinstatement issued by the court showing that the person (a) is making payments or has paid the fine; or (b) has enrolled in a preapprenticeship program as defined or is a registered apprentice as defined; or (2) twenty years has elapsed from the date of the traffic offense. O.R.S. 809.416(2); see also O.R.S. 809.415(4)(a) (the mandatory suspension shall continue until the earlier of (1) the person establishes that she or he has performed all acts necessary under O.R.S. 809.416 to make the person not subject to suspension; or (2) twenty years from the date the traffic offense occurred if the suspension is imposed for a reason described in O.R.S. 809.416(2) (failure or refusal to pay a fine)). Echoing the exception in O.R.S. 809.210(7), O.R.S. 809.416(3) exempts from suspension persons who fail or refuse to pay a fine relating to any pedestrian, bicycle, or parking offense.
While mandatory unless excepted under O.R.S. 809.416(2)(a) or (b), the suspension does not take effect immediately. Instead, the department, upon receipt of a notice of suspension from a court, must send a letter by first class mail advising the person that suspension will begin sixty days from the date of the letter unless the department is presented with a notice of reinstatement by the court under O.R.S. 809.416(2)(a). O.R.S. 809.416(3); see also O.R.S. 809.210(4)(a) (providing that if the court issues a notice of suspension that directs the DMV to implement suspension procedures under O.R.S. 809.416, and if at any time within the period of suspension, a person pays the fine or has begun making payments according to the payment schedule established with the court, the court shall immediately send to the department a notice of reinstatement; further stating that the notice of suspension may be reissued if the person ceases making payments before the fine is paid in full).
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A person whose license has been suspended under O.R.S. 809.415(4)(a) is entitled to administrative review under O.R.S. 809.440. O.R.S. 809.415(4)(b). This review is an "informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based." O.R.S. 809.440(2)(a). A person may defend against the department's action by showing (1) that the conviction did not involve a motor vehicle and the department's action is permitted only if the offense involves a motor vehicle; (2) an out-of-state conviction on which the department's action is based was for an offense that is not comparable to an offense under Oregon law; or (3) the records relied on by the department identify the wrong person. O.R.S. 809.440(2)(b). Judicial review of a department order affirming a suspension is allowed. O.R.S. 809.440(2)(e).
The statutes do not appear to address the contents of the sixty-day notice sent by the DMV. However, the preliminary injunction record contains copies of such notices sent to several of the Plaintiffs. First, a sixty-day notice was sent to Plaintiff Gloria Bermudez on October 7, 2013 and makes clear that her driving privileges will be suspended beginning at 12:01 AM on December 6, 2013. Bermudez Decl., Ex. 2, ECF 4-2. The information in the notice is comprehensive and includes information indicating that the suspension can be prevented by contacting the applicable court. It states, at various places in the notice:
To prevent this suspension you must make certain the action required below is completed and received by DMV no later than 5:00 pm on the last business day prior to December 06, 2013. * * * You can stop this suspension by contacting the court named below and completing all the requirements necessary to clear this matter. If we receive a clearance notice from the court before the date the suspension begins, this
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suspension will not go into effect. Id. The notice urges the recipient to contact the court as soon as possible. Id. It states that no hardship permit is available. Id. It also informs the recipient of the right to administrative review, how to obtain that review, and what the department will review. Id. ("In this review we will look at our records and the documents concerning this matter to determine if we took appropriate action" and further stating that the DMV will review the person's evidence to determine if "you are the same person" named on the notice from the court, if the DMV received notice from the court that you failed to pay a fine, and if the DMV received a clearance notice from the court).
Next, a notice dated October 27, 2016 was sent to Plaintiff Cekais Toni Ganuelas. Ganuelas Decl., Ex. 1, ECF 6-1. It indicates the date and reason for the suspension. Id. It also states that the suspension will last until the DMV receives a "court clearance (notice of reinstatement) or 20 years have elapsed from the date the traffic offense(s) occurred." Id. A separate section provides:
CAN I STOP THIS SUSPENSION? To stop the suspension, DMV must receive a court clearance. Contact the court to determine how to obtain a court clearance for the docket(s) shown. You will find court contact information on DMV's website. Id. The notice provides additional information on the right to obtain an administrative review, how to obtain that review, and what the DMV will consider. Id. Notices identical to the one sent to Ganuelas were issued to Plaintiff Cindy Mendoza on July 29, 2015, and to Plaintiff Karl Wade Roberts on July 6, 2018. Mendoza Decl., Ex. 2, ECF 8-2; Roberts Decl., Ex. 1, ECF 9-1. Even if suspension has begun, a court may still issue a notice of reinstatement and the
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suspension will be terminated. E.g., Bermudez Decl., Ex. 2 ("You can stop this suspension after it begins by meeting the court's requirements and obtaining a court clearance notice."; "If we receive the clearance notice on or after the date the suspension begins, you will have to pay a reinstatement fee to DMV[.]"); Ganuelas Decl., Ex. 1 ("If DMV receives the court clearance after the suspension begins, you will have to pay a DMV reinstatement fee."). II. Plaintiffs' Suspensions & Personal Circumstances
Each of the six named Plaintiffs currently has a suspended license for failure to pay traffic debt. Bermudez Decl. ¶ 6; Ganuelas Decl. ¶ 3, ECF 6; Heath Decl. ¶¶ 5, 6, ECF 7; Mendoza Decl. ¶ 5, ECF 8; Roberts Decl. ¶ 6, ECF 9; Chase Decl. ¶ 12, ECF 34. Some have had multiple suspensions over many years. E.g., Bermudez Decl. ¶¶ 8, 10 (license suspended in 2003 and again in 2014); Heath Decl. ¶¶ 5, 6 (license suspended in 1995 and has received six notices of suspension since then); Mendoza Decl. ¶¶ 5, 7, 13 (license suspended in 2010, again in 2016, and expects another as a result of unpaid fines).
The underlying violations which resulted in fines include (1) failing to obey a traffic control device, failing to use proper child seats, driving with expired tags, driving while using a cell phone; Bermudez Decl. ¶¶ 8, 9, 10, 13; (2) failing to display plates or illegal display of plates; Ganuelas Decl. ¶ 3; Roberts Decl. ¶ 6; (3) speeding; Ganuelas Decl. ¶ 4; Mendoza Decl. ¶ 7; Chase Decl. ¶¶ 7, 8; and (4) failing to appear at arraignment for misdemeanor traffic case involving a car accident with property damage only; Mendoza Decl. ¶ 12. Additionally, Plaintiffs have received citations, and thus fines, for driving with a suspended license. E.g., Bermudez Decl. ¶¶ 10, 13; Ganuelas Decl. ¶ 5; Mendoza Decl. ¶¶ 5, 6; Roberts Decl. ¶ 6.
Some Plaintiffs have attempted to work out payment plans. Bermudez states that she was
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cited in 2003 for failing to obey a traffic control device. Bermudez Decl. ¶ 8; id., Ex. 1 (copy of citation). Because she failed to appear at her arraignment and apparently did not pay the presumptive fine, her license was suspended in May 2003. Id. ¶ 8. The debt was sent to collections but the court later set up a payment plan, allowing her license to be reinstated in 2010. Id. However, she could not keep up with the $50/month payments and her license was suspended again in 2012. Id. In July 2012, Bermudez was cited for several violations. Id. ¶ 13. She worked out a payment plan with the court. Id. ¶ 15; id., Ex. 3. She was to pay $75 per month, on the 24th of each month, until the total of $435 was paid. Id. On August 24, 2012, the date her first payment was due, she wrote a letter to the court explaining that she could not make the payment because she just had a premature baby. Id., Ex. 4. A handwritten note dated the same day states "allow 30 days extra." Id. However, she still could not make the payments. Id. ¶ 13. She states that her license was suspended in 2013 as a result. Id.
Since 2012, Ganuelas has been cited at least three times for driving with a suspended license. Ganuelas Decl. ¶ 5. On one of those occasions, in 2015, she was offered a payment plan for the $485 owed. Id. ¶ 20. She made $50 monthly payments for a time but was unable to pay a $160 balance at which point the court notified the DMV which suspended her license. Id. Heath states that "various courts have forced me into payment plans that I couldn't afford." Heath Decl. ¶ 8. Most required her to make a minimum $50 monthly payment. Id. Most recently, the Pendleton Municipal Court imposed that requirement on her. Id. She began making $20 monthly payments instead, which subjected her to a show cause hearing during which the court agreed to allow her to continue making $20 monthly payments. Id.
Mendoza does not remember being offered a payment plan for traffic debt owed to the
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Beaverton or Milwaukie Municipal Courts. Mendoza Decl. ¶¶ 9. She currently is on a payment plan for traffic debt owed to Clackamas County Circuit Court, but she has missed some of the $100 monthly payments and that court has now sent the debt to collections. Id. ¶¶ 12, 13. She expects that the court will send a suspension notice to the DMV which will suspend her license. Id. Roberts states that at one point, he made payments to the Baker County Justice Court but since then, he has acquired more traffic tickets which he cannot pay off with his limited income. Roberts Decl. ¶ 7. It is his belief that the Baker County Justice Court will not ask the DMV to lift his suspension unless he is able to make $50 monthly payments to that court. Id. ¶ 10.
Chase was offered payment plans in Gilliam and Sherman County Justice Courts when he explained he could not pay the fines and fees for speeding citations. Chase Decl. ¶¶ 7, 8. However, each county told him the longest term possible was twelve months which resulted in a monthly payment more than he could afford. Id. Both of the debts were eventually sent to collections. Id. ¶ 10. He also received traffic violations in 2006 and 2008 in Beaverton. Id. ¶ 11. Consistent with what he was told by the Gilliam and Sherman County Justice Courts, the Beaverton Municipal Court also told him that a payment plan was available, but it could not extend beyond twelve months. Id. This debt was also assigned to a private debt collector. Id. Chase worked out payment plans with the private collection agencies beginning in 2013 to pay off the debts to the Gilliam and Sherman County Justice Courts. Id. ¶¶ 15-17. Both of those debts have been discharged. Id. He has attempted to negotiate a payment plan with the Beaverton Municipal Court but was told that because the debt had been referred to a private collection agency, the debt was "out of house" and he could not meet with a judge. Id. ¶¶ 18-19. The private collection agency has refused to enter into a payment plan extending longer than
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twelve months which would result in monthly payments greater than $100, an amount Chase cannot afford. Id. ¶ 20. Nonetheless, in January 2018, Chase began to pay the debt collection agency $75 per month and then $50 per month beginning in April 2018. Id. ¶ 22. At $50 per month, it will take him more than two more years to pay the debt in full at which point he can get his license reinstated. Id.
Several Plaintiffs state that the DMV never inquired about an ability to pay the traffic debt before suspending a license. Bermudez Decl. ¶ 16 (stating that before each suspension, no one from the DMV or any court asked if she was able to pay the debt); Mendoza Decl. ¶ 10 (same); Ganuelas Decl. ¶ 24 (no one from the DMV asked about ability to pay before suspending license); Heath Decl. ¶ 7 (same); Roberts Decl. ¶ 11 (same); Chase Decl. ¶ 13 (same). Plaintiffs further state that if given the chance to avoid suspension by explaining an inability to pay, he or she would have done so. Bermudez Decl. ¶ 16; Ganuelas Decl. ¶ 24; Heath Decl. ¶ 7; Mendoza Decl. ¶ 10; Roberts Decl. ¶ 11; Chase Decl ¶ 13.
By any measurable standard, each Plaintiff is impoverished. All live on very limited incomes. Bermudez Decl. ¶¶ 3-5 (single parent of four children; works as a cook in a shopping mall restaurant earning $14 per hour; receives $420 per month in food stamps); Ganuelas Decl. ¶¶ 2, 6, 7, 8 (single parent of one child; lost job in July 2018 where she earned $400 per week; now earns $140 per month teaching yoga; has received $117 per week in child support but father of child stopped paying two months ago); Heath Decl. ¶ 3 (receives $750 per month in social security disability; four times per year receives $400 in casino dividends from the Confederated Tribes of the Umatilla Indian Reservation but receipt of casino dividends results in a corresponding reduction in social security payments; receives $189 per month in food stamps;
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has not maintained regular employment since 1997); Mendoza Decl. ¶¶ 2-4 (unemployed single parent of three children; recently moved to subsidized two-bedroom apartment but previously spent four months living in a motel room and in a homeless shelter; receives approximately $1,100 monthly in assistance, including food stamps); Roberts Decl. ¶¶ 3-4 (lives with wife and each receive $562 per month in social security income; has not had substantial paid work since March 2003 due to disabilities); Chase Decl. ¶ 2 (receives $817 per month in social security disability and approximately $190 per month in food stamp with no other sources of income).
Plaintiffs struggle to obtain basic life necessities such as housing and food, and some have medical issues and are on disability. Bermudez Decl. ¶ 5 (earnings not enough to support her family resulting in struggles to pay monthly electric, gas, and phone bills; often seeks free food at food pantries at end of the month); Ganuelas Decl. ¶ 10 (recently moved from apartment to renting a room from a friend because the apartment rent was too high); Heath Decl. ¶ 3, 12 (on disability; homeless for seven years until December 2017); Mendoza Decl. ¶ 4 (assistance and food stamp amounts not enough to support family requiring her to find free boxes at food pantries every month); Roberts Decl. ¶¶ 3-5 (disabled for several years; social security income received by Roberts and his wife not enough for the family with no money left after paying bills and buying groceries); Chase Decl. ¶¶ 2, 14 (disabled since 2009).
Regardless of residence in an urban or rural community, each Plaintiff describes the difficulties of life without the ability to drive a car. For example, Bermudez, who lives in Portland, explains that she still drives because it cuts her work commute from one hour on the bus to twenty-five minutes by car, and given her children's needs, she cannot afford the extra time on the bus. Bermudez Decl. ¶ 20. She drives her children to school in five to ten minutes to
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spare them an hour-long bus ride starting at 6:45 a.m. which would cause sleep deprivation with negative health and learning impacts. Id. ¶ 21. She buys groceries by car because of the amount of food needed for a family of five. Id. ¶ 22. Each day without a driver's license makes it hard for her to shop for groceries, take her children to school, get to medical appointments, and get to work. Id. ¶ 24.
Ganuelas recently moved from Pendleton to Mission, about six miles away, because Pendleton's rent was too high. Ganuelas Decl. ¶¶ 2, 10. Before she moved, her job as a bartender was one mile away and she walked, even though she had to cross a busy four-lane highway and walking home from her late-night shift made her feel unsafe. Id. ¶ 9. After moving, she had to pay a friend to take her to work or use a taxi. Id. ¶ 10. In July 2018, she lost her bartending job because she missed a shift. Id. ¶ 7. She had gone away with friends who decided to stay longer than planned. Id. This left her with no way to return. Id. No one would lend her a car given that her license was suspended. Id. She was fired at the end of the pay period for failing to show up for her shift. Id. Ganuelas can use a tribal shuttle to get from Mission to Pendleton but it runs only six days per week from 8 a.m. to 5 p.m. and thus, was not an option when she still was bartending. Id. ¶ 11. Not having a license makes it difficult for her to provide for herself and her daughter. Id. ¶ 12. To buy groceries, clothes, and necessary household goods, she has to find a ride and pay $10 each way. Id. Her daughter has been unable to play on a youth soccer team because Ganuelas lacks a reliable way to get her to practices and games. Id. ¶ 13. Ganuelas has missed events at her daughter's school because of her inability to drive. Id. ¶ 14. It is difficult for her to visit extended family in Washington, Alaska, and other parts of Oregon without a car. Id. ¶ 15.
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Heath explains that when she last worked, in 1997, she walked five and one-half miles each way because her license was suspended. Heath Decl. ¶¶ 4, 5. She lives in Pendleton, where, she states, the public transportation is slow and limited. Id. ¶ 10. There are no ridehailing services such as Uber or Lyft. Id. Taxis are expensive. Id. Because of her suspension, she has had to pay expensive cab fares, walk long distances in hot, cold, and wet weather, and take slow public transit systems. Id. ¶ 11. She has missed funeral services for family members and tribal events. Id. Walking is difficult for her because she gets exhausted and experiences soreness in her back, legs, and feet, but without a driver's license, she has to walk long distances every day. Id. ¶ 16.
Mendoza lives in Portland and has had difficulty finding a job without a valid driver's license. Mendoza Decl. ¶¶ 2, 4, 21. She still drives occasionally to get her children to medical appointments, to buy clothes and school supplies, and to access food pantries. Id. ¶¶ 17-19. She tries to take the bus or light rail but for groceries, food pantries, and medical appointments, she relies on her car. Id. ¶ 20. Uber and Lyft are too expensive for her. Id.
Roberts lives in Baker City where there is very little public transportation. Roberts Decl. ¶ 17. His wife also does not have a driver's license and needs transportation to frequent medical appointments required by a health condition. Id. ¶ 16. He tries to avoid driving but still does so on a limited basis because he does not see an alternative in Baker City given his and his wife's health issues. Id. ¶ 18. He has ridden his bicycle as an alternative, even through the harsh Baker City winters, to purchase groceries but as he has aged, it has become more difficult and his doctor has now advised against it for health reasons. Id. ¶ 15. It is "pretty much impossible" to fish and hunt or to visit his adult children in Idaho and Missouri without a car. Id. ¶¶ 13, 14.
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Finally, Chase, who lives in Vancouver, Washington, states that he uses public transportation to get around, but the inability to drive is still a hardship. Chase Decl. ¶ 25. Using public transportation in the Vancouver-Portland area typically takes ninety minutes and two transfers with trains and buses often delayed. Id. He has been stranded multiple times. Id. Having a driver's license would make it much easier to take care of basic life necessities such as buying groceries and going to medical appointments. Id. Without the ability to drive, he does not feel like a full participant in society. Id. ¶ 26.
Defendants do not dispute that Plaintiffs' traffic debt remains unpaid only because they cannot afford to pay it, not because of a willful refusal to pay. Defendants do not dispute Plaintiffs' descriptions of their economic, social, or employment circumstances or how the loss of their driver's licenses for nonpayment of traffic debt has contributed to their poverty and added challenges to their lives. Defendants do not dispute that the ability to drive a car plays a central role in one's life, whether living in a large metropolitan area, a small city, or a rural area. Thus, I rely on these facts, which are supported by Declarations and undisputed by Defendants, in this Opinion. III. Judicial Officers' Adjudication of Traffic Violations & Fine Impositions
Three judges of municipal or justice courts submitted Declarations explaining Oregon's statutory scheme for traffic debt and how each carries forth his or her duties in that regard. Judge Jad Lemhouse, a Justice of the Peace for the Linn County Justice of the Peace District 4A, regularly conducts proceedings on traffic offenses, both misdemeanor crimes and violation offenses. Lemhouse Decl. ¶ 2, ECF 25. He states that in his experience, "most judges in Oregon are willing to work with people to get them out of the system." Lemhouse Decl. ¶ 16. But, he
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explains, a person must appear in court and follow the court's directions and procedures "for that to happen." Id.
When a person with a suspended license comes into Lemhouse's court for a driving while suspended violation, he talks to the person about whether the person wants to get her or his driving privileges reinstated. Id. ¶ 12. If the person does, he defers sentencing and discusses what is required for reinstatement and what kind of timeline is necessary to accomplish certain tasks such as contacting each of the courts to which the person owes a fine to try and make payment arrangements, contacting the state support enforcement division to address the person's unpaid child support, if any, and contacting five or six insurance agents to ascertain the cost of obtaining insurance. Id. Lemhouse works with the person to schedule proposed payments to the courts or the support enforcement division along with the monthly insurance cost. Id. ¶ 13. At this point, the person can show each of the courts that he or she is seriously making an effort. Id. If necessary, Lemhouse writes to the judge or judges in question supporting the person's proposal. Id.; see also id., Attach. A. With this process, Lemhouse reports that more than half of the individuals succeed. Id. Lemhouse allows equitable relief from judgment when a person has made twenty-four consecutive payments on their payment plans and has received no new convictions in that period. Id. ¶ 15. If those requirements are successfully completed, any remaining fine balance is remitted in full. Id.
Judge Karen Brisbin is a Municipal Judge for the City of Sandy and a Justice of the Peace for Clackamas County Justice Court. Brisbin Decl. ¶ 1, ECF 26. She hears traffic violation cases and states that when a fine is imposed, the person may pay in full or set up a payment plan. Id. ¶ 2. The monthly payment may be different for each person based on the ability to pay. Id. If
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the person is unable to make a payment after the payment plan is set, and the person is in contact with the court, the court will work with the person to assure compliance with the court's order. Id. In such cases, the person may be allowed to skip a monthly payment or reduce the amount of the monthly payment until the person can get back to work. Id. She states: "The key is to keep in contact with the court." Id.
When individuals do not appear or do not contact the court, or fail to continue to make their payments as part of a payment plan, and when the court "cannot get the convicted person's attention for compliance," the court will issue the notice of suspension to the DMV to initiate suspension procedures. Id. ¶ 3. Once the DMV sends the sixty-day suspension notice, the person can contact the court and get into compliance by paying the fine or setting up a payment plan. Id. This allows the person to entirely avoid the license suspension and the DMV reinstatement fee. Id. Even post-suspension, the person can obtain reinstatement by working with the court to pay the fine via a payment plan. Id. According to Brisbin, "[p]ersons may provide a letter to the judge stating their financial hardship along with documentation to resolve the license suspension." Id. Brisbin observes that the notice of suspension issued by the DMV "often . . . works so that the person contacts the court who then works with the person to facilitate payment of the fine. The system would not work nearly as well without the suspension provisions in the statute." Id. ¶ 4.
Finally, Judge Kathy Stinnett is a Justice of the Peace for Grant County and is the President of the Oregon Justice of the Peace Association. Stinnett Decl. ¶ 1, ECF 35. There are twenty-eight justices of the peace who preside in twenty-eight justice courts. Id. ¶ 1. They heard 125,918 traffic violation cases in the 2017-18 fiscal year. Id. She submits her Declaration on
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behalf of the Association. Id. After explaining how traffic violation cases come to courts and what options the individual has upon receiving a violation, she states that "[j]udges are aware that the purpose of a traffic fine is to get the attention of the driver to change or reinforce driving behavior consistent with the rules of the road in Oregon for traffic safety." Id. ¶ 4.
According to Stinnett, a person may pay the fine in full or set a payment plan with the court. Id. She observes that "[c]ourts routinely work with individuals regarding payment of fines." Id. ¶ 5. When payments are missed, the court may reach out to the person by letter or telephone. Id. If the person is in contact with the court, the court will review the individual circumstances to determine how, when, and if the fine will be paid. Id. In cases where a suspension is initiated for failure to pay the fine, in "numerous cases" the person contacts the court within the sixty-day period and works with the court to pay the fine or get back on track with the payment plan. Id. ¶ 7. Courts also work with persons after suspension. Id. She states that the license suspension is an important tool used by courts when working with persons who owe traffic debt. Id. ¶ 8.
Plaintiffs argue that Judges Lemhouse and Brisbin may speak to how they personally handle collection of traffic debt but not to how every circuit, municipal, or justice court judge does so. Pls.' Reply 6, ECF 33.5 Although Judges Lemhouse and Brisbin do not expressly state how they have acquired knowledge of court practices generally, it is presumably from talking to
5 Because Stinnett's Declaration was filed after Plaintiffs' Reply, Plaintiffs do not mention it with their argument addressed to Lemhouse's and Brisbin's Declarations. Given that Stinnett's Declaration is submitted on behalf of the Oregon Justice of the Peace Association, it is unclear if Plaintiffs would make the same objection to her characterization of how justice courts handle traffic violation fines and debt. 21 - OPINION & ORDER

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their peers. Assuming that is the case and thus, that they rely on out-of-court statements for the truth of the matter asserted, the evidence may be inadmissible hearsay. However, "the rules of evidence do not apply strictly to preliminary injunction proceedings" given the urgency of obtaining an injunction and the limited factual development that has occurred. Herb Reed Enters, LLC v. Fla. Entm't Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013). "[I]n deciding a motion for a preliminary injunction, the Court has broad discretion to consider all arguments and evidence, including hearsay and other inadmissible evidence, [and] declarations from interested parties[.]" Brinton Bus. Ventures, Inc. v. Searle, 248 F. Supp. 3d 1029, 1032 (D. Or. 2017) (citing Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009); Lane v. Dep't of Interior, 523 F.3d 1128, 1140 (9th Cir. 2008)). Thus, even assuming that the Declarations are based on potential inadmissible hearsay, the statements are appropriately considered for the purposes of this motion. IV. Oregon's Scheme in Law & in Practice
Oregon courts adjudicate traffic violations. Punishment for a traffic violation is a fine. Citations give notice of the court date and time that the violator must appear to address the citation. Some violators do not wish to contest guilt and are willing and able to pay the assessed fine, which is the presumptive fine as set by the Oregon Legislature. This may be accomplished without a formal court appearance. Otherwise, the violator must appear. The statutes addressing the contents of citations and summonses do not require that the violator be told that even when guilt is admitted, a payment plan may be worked out in cases of indigency or that failure to pay could result in suspension of a license.
The statutes also do not require that an Oregon court assessing a fine for a traffic
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violation notify the violator of the possibility of a payment plan for the fine. Nonetheless, several Oregon courts, as demonstrated by the judicial officers' Declarations as well as the Declarations of several Plaintiffs, do consider a person's indigency and will offer a payment plan. Whether this occurs frequently, regularly, occasionally, or otherwise is unclear. The evidence indicates that each time a Plaintiff requested an initial payment plan from a court, he or she was given one.6 It may not have been one that suited the Plaintiff's ability to pay, for example when Chase was told the fine had to be paid over twelve months making for untenable monthly payments, but a payment plan was initially offered.
While the statutes provide for a minimum fine for each type of violation, they also provide that a judge may suspend any part of the judgment, including the fine, "upon condition that the defendant pay the nonsuspended portion of a fine within a specified period of time." O.R.S. 153.090(4). This suggests that judges have flexibility to work with a violator so that the total fine paid may be less than the minimum statutory fine. In fact, Judge Lemhouse notes that he remits the unpaid portion of a fine upon completion of his requirements of consecutive payments of twenty-four months with no new violations.
The lack of consistency among the courts in whether they affirmatively account for violators' indigency and notify violators of the possibility and terms of a payment plan is troubling. What may benefit a violator in one jurisdiction may be unavailable in another. Certainly, the statutes do not prohibit a court from offering a payment plan or from accounting for an individual's financial circumstances. But, the statutes undisputably do not require a court
6 Some Plaintiffs do not recall a payment plan being offered but the record shows that when a Plaintiff requested a payment plan, one was given. 23 - OPINION & ORDER

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to make an assessment of an individual violator's ability to pay a fine and structure a fine and payment plan accordingly.
It is also clear that the suspension of a driver's license is within the discretion of the court. The statute unambiguously states that when a fine is unpaid, the "court may . . . issue a notice of suspension to the [DMV] that directs the department to implement procedures under ORS 809.416[.]" O.R.S. 809.210(1)(a) (emphasis added). It is not mandatory for the court to issue the notice. However, once issued, it is mandatory for the DMV to suspend the license after issuing the sixty-day suspension notice when no reinstatement order from the court is received by the DMV before the sixty-day period expires. In contrast to the discretion afforded the court, there is no discretion for the DMV.
The sixty-day notices in the record expressly direct the recipients to the court to address the outstanding fine, but they fail to mention anything about options if one is unable to pay. While the statute contemplates that the court has the authority to work out a payment plan at that point, or even after suspension has begun, the sixty-day notices do not specifically inform the recipients that a payment plan may be an option. Instead, recipients are told that they can stop the suspension by contacting the court and "completing all the requirements necessary to clear this matter," or by "meeting the court's requirements." In the more recent version of the notices, the recipient is told to "[c]ontact the court to determine how to obtain a court clearance for the docket(s) shown." Unless one knows to ask for a payment plan, it may not occur to a person receiving the sixty-day notice that anything other than full payment is possible. Nonetheless, it is undisputed that based on the examples of the sixty-day notices in the record, notice recipients are clearly informed to contact the court to address the matter.
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The judicial officers' Declarations indicate that some courts do not always exercise their discretion to send a suspension notice to the DMV without first attempting to contact the person and assess the situation. Courts may use the threatened suspension as leverage to obtain compliance with a payment plan or to at least initiate a conversation about options. And, some courts remain open to such a discussion during the sixty-day period or after suspension is effective.
Finally, it is undisputed that the statutes do not provide for the DMV to consider an individual's ability to pay before suspending a driver's license for failure to pay traffic debt.
STANDARDS A party 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. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The plaintiff "must establish that irreparable harm is likely, not just possible[.]" Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The court may apply a sliding scale test, under which "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Id. Thus, a party seeking an injunction may show greater irreparable harm as the probability of success on the merits decreases. Id. (noting also that the relevant test in the Ninth Circuit is described as the "serious questions" test where the likelihood of success is such that "serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor") (internal quotation marks and brackets omitted).
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The party requesting a preliminary injunction must carry its burden of persuasion by a "clear showing" of the four required elements set forth above. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (a preliminary injunction is an "'extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion'") (quoting Mazurek, 520 U.S. at 972).
In considering whether to issue a preliminary injunction, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter, 555 U.S. at 23 (internal quotation marks omitted); see also Univ. of Haw. Prof'l Assembly v. Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999) ("To determine which way the balance of the hardships tips, a court must identify the possible harm caused by the preliminary injunction against the possibility of the harm caused by not issuing it.").
When the relief sought would "order[] a responsible party to take action," the injunction is viewed as mandatory rather than prohibitory. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) (describing the requested relief as requiring the defendant to take "affirmative action" to remove a video from YouTube and other sites) (internal quotation marks omitted). "A prohibitory injunction prohibits a party from taking action and 'preserves the status quo pending a determination of the action on the merits.'" Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1157 (D. Or. 2018) (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (brackets omitted)). In contrast, a "'mandatory injunction orders a responsible party to take action.'" Id. (quoting Marlyn
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Nutraceuticals, 517 F.3d at 878-79. Mandatory injunctions "'go[] well beyond simply maintaining the status quo[.]'" Id. (quoting Marlyn Nutraceuticals, 517 F.3d at 878-79).
Mandatory injunctions trigger a higher standard. See Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017). Mandatory injunctions require a showing that "extreme or very serious damage will result[.]" Id. (internal quotation marks omitted). The merits of the case must not be "doubtful" and injury must be incapable of compensation in damages. Id.
DISCUSSION I. Nature of the Claims and the Injunctive Relief Sought
A. First Amended Complaint Plaintiffs bring three claims. The first relies on the "fundamental fairness" concept of substantive due process and equal protection as explained by the Supreme Court in cases such as Griffin v. Illinois, 351 U.S. 12 (1956), and Bearden v. Georgia, 461 U.S. 660 (1983). First Am. Compl. ¶¶ 207-212, ECF 38. Plaintiffs contend that under Griffin, "states must provide an evaluation of ability to pay to assess an individual's indigence prior to [] taking any measures that could result in any additional punishment beyond that imposed upon financially solvent individuals." Id. ¶ 210; see also id. ¶ 211 (citing Bearden and alleging that the "Fourteenth Amendment's Due Process and Equal Protection Clauses prohibit punishing individuals for nonpayment without first determining that they had the ability to pay and willfully refused to make a monetary payment."). The "gist" of this claim, according to Plaintiffs, "is that the Fourteenth Amendment prohibits a government from treating indigent defendants worse than non-indigent defendants, because of their poverty." Pls.' Reply 14. In their second claim, Plaintiffs rely only on the Equal Protection Clause. Id. ¶¶ 213-15.
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Specifically, they rely on James v. Strange, 407 U.S. 128 (1972), to contend that the state may not distinguish indigent traffic debt debtors from other indigent debtors. Id. They assert that under Strange, equal protection principles are violated by statutes which result in the DMV treating indigent traffic debtors worse than indigent debtors who commit bicycle, pedestrian, or parking offenses, private debtors with delinquent credit card debt, and child support debtors. Id. ¶ 215; see also Pls.' Mot. 32 ("Under Strange, ORS § 809.416 is unconstitutional because it empowers the DMV to treat indigent traffic debtors worse than other kinds of indigent debtors.").
The third claim is a procedural due process claim. Id. ¶¶ 216-18. Plaintiffs allege that they have property and liberty interests in their driver's licenses and their ability to drive legally. Id. ¶ 217. They assert that Defendants violate their procedural due process rights by suspending their driver's licenses without affording them a pre-suspension or post-suspension hearing to determine if they are able or unable to pay their traffic debt. Id.
Plaintiffs seek both declaratory and injunctive relief. Id. § X. They seek a declaration that Defendants' practices with respect to the suspension of driver's licenses as alleged have violated and continue to violate the Due Process and Equal Protection Clauses of the Constitution. Id. § X(b). They seek injunctive relief in the form of an order (1) prohibiting Defendants from suspending Plaintiffs' and class members' driver's licenses for unpaid traffic debt until such time as the DMV and the State of Oregon implement a system that complies with the Constitution; and (2) requiring Defendants to remove Plaintiffs' and class members' suspensions for nonpayment of traffic debt that were effected before the date of judgment, and as part of that removal, prohibiting Defendants from requiring Plaintiffs and class members to pay reinstatement fees as a condition of reinstatement. Id.; see also X(c), (d).
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B. Preliminary Injunction Motion In the preliminary injunction motion, Plaintiffs seek a preliminary injunction (1) compelling Defendants to remove the license suspensions on Plaintiffs' licenses for nonpayment of their traffic debt under O.R.S. 809.416 and, if Plaintiffs are then eligible for reinstatement of their licenses, compelling Defendants to waive the reinstatement and issuance fees under O.R.S. 870.370; and (2) ordering Defendants to refrain from suspending Plaintiffs' licenses for failure to pay their traffic debt unless and until Plaintiffs have had the opportunity to demonstrate their inability to pay, entitling them to be exempt from suspension, through a procedure that comports with due process. As I understand the injunctive relief sought in the motion, Plaintiffs do not seek only the opportunity to demonstrate their inability to pay the outstanding traffic debt. They seek as well an order from this Court requiring the DMV to exempt them from paying the outstanding debt upon a determination that they are indigent and cannot pay the debt. Additionally, they seek an order requiring the DMV to reinstate their driver's licenses at this point, notwithstanding the outstanding debt, and without a reinstatement fee. Defendants argue that the injunctive relief sought is mandatory because Plaintiffs seek to alter rather than preserve the status quo. Plaintiffs contend the requested relief is prohibitory but even if any portion of it is considered mandatory, they have demonstrated the strength of their claims. An injunction preventing future unconstitutional conduct is "a classic form of prohibitory injunction." Hernandez, 872 F.3d at 998. Thus, in Hernandez, the requested preliminary injunctive relief preventing the defendant from conducting future initial bond hearings under
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unconstitutional procedures was prohibitory. Id. In contrast, ordering the defendant to provide new bond hearings to individuals currently detained on bonds set pursuant to allegedly unconstitutional procedures was arguably mandatory. Id. at 998-99. "The relevant status quo is that between the parties pending a resolution of a case on the merits." Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014) (internal quotation marks omitted).
In this case, the relevant status quo at the inception of the case is that Plaintiffs' licenses are suspended. I agree with Plaintiffs that the portion of their requested relief seeking to prevent Defendants from suspending their licenses without giving Plaintiffs the opportunity to demonstrate their inability to pay and entitling them to an exemption consistent with procedural due process, is prohibitory. But, I agree with Defendants that the requested relief requiring Defendants to revoke Plaintiffs' suspensions and reinstate their licenses without any additional fee, is mandatory because it orders Defendants to take action instead of prohibiting them from future allegedly unconstitutional conduct. And, in this case, the requested injunctive relief that is prohibitory is unavailable to Plaintiffs unless the mandatory injunctive relief is granted. Because the status quo is one of current suspensions, it is only if Defendants first rescind Plaintiffs' suspensions and restore their driving privileges that a future prohibition on suspending Plaintiffs' licenses without an exemption upon demonstrated inability to pay would matter. Thus, in this case, I analyze the motion as one seeking a mandatory injunction. II. Younger Abstention
Defendants argue that this Court should abstain from considering this case under the principles of Younger v. Harris, 401 U.S. 37 (1971). Younger abstention recognizes that principles of equity and comity preclude federal courts from enjoining state criminal proceedings
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and state "civil enforcement actions akin to criminal proceedings." ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014) (citing Younger, 401 U.S. at 43-54; Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)) (internal quotation marks omitted). For state civil enforcement proceedings, the Younger analysis looks at whether the state proceedings "(1) are ongoing, (2) are quasi-enforcement criminal actions or involve a state's interest in enforcing the orders and judgments of its courts, (3) implicate an important state interest, and (4) allow litigants to raise federal challenges." Id. at 959.
Because I resolve the preliminary injunction motion in favor of Defendants, I decline to address the Younger abstention issue at this time. III. First Claim for Relief - Griffin/Bearden Fundamental Fairness
Plaintiffs contend that under the Griffin/Bearden line of cases, due process and equal protection principles combine to prohibit penalizing people simply because they are poor. Plaintiffs suggest that under these cases, the appropriate inquiry is not based solely on either substantive due process or equal protection. Instead substantive due process and equal protection considerations converge into considerations of "fundamental fairness." Thus, in cases involving the treatment of indigent criminal defendants, the court must engage in a "more searching inquiry," Pls.' Mot. 23, which requires analyzing factors such 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." Bearden, 461 U.S. at 666-67 (internal quotation marks and brackets omitted).
Under this analysis, Plaintiffs argue that the nature of the individual interest involved is the "right to basic self-sufficiency" and the constitutional right to travel. Pls.' Mot. 25-28. Next,
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they argue that the interests involved are greatly affected as demonstrated by Plaintiffs' unchallenged Declarations detailing the burdens they experience when deprived of their driver's licenses. Third, Plaintiffs contend that there is no rational connection between suspending a license for failure to pay traffic debt and the challenged means of doing so without an inquiry into the debtor's ability to pay before or during suspension. Plaintiffs concede that O.R.S. 809.416 may be a rational means for coercing payment of traffic debt for those who can afford to pay it. But, that is not the case for those low-income individuals who cannot afford to make payments on the debt. "Visiting a harsh consequence on 'someone who through no fault of his own is unable to make' the payment sought 'will not make [payment] suddenly forthcoming.'" Thomas I, 303 F. Supp. 3d at 614 (quoting Bearden, 461 U.S. at 670) (brackets in Thomas). In fact, Plaintiffs argue, depriving traffic debtors of their driver's licenses based on a failure to pay is counterproductive because it undermines the objective of obtaining payments on traffic debt by adversely affecting the debtors' ability to find and maintain a job. Finally, Plaintiffs argue that there are "robust, alternative means for collecting traffic debt." Pls.' Mot. 30. They note that the state can send collection letters, assign a delinquent account to a private collection agency or to the ODOR for set offs, and garnish a traffic debtor's wages. Id. at 30-31.
Defendants argue that the Griffin/Bearden cases have a more limited application than Plaintiffs suggest, that driving is not a fundamental right, that poverty is not a protected class, and that the statutory scheme has a rational basis. Based on these arguments, Defendants contend that Plaintiffs fail to establish substantive due process or equal protection claims.
Griffin addressed the constitutionality of requiring criminal defendants to pay for transcripts in order to appeal. 351 U.S. at 13. Undisputably, the issue arose in the criminal
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context. Several times in the plurality decision the Court referred to criminal trials. E.g., id. at 17 ("our own constitutional guarantees of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons"; "all people charged with a crime must, so far as the law is concerned, stand on an equality before the bar of justice.") (internal quotation marks omitted). While the plurality decision did not make clear if it was addressing the issue as one of due process or equal protection, Justice Frankfurter, concurring in the judgment, relied on equal protection principles. E.g., id. at 21 (equal protection does not deny a state "the right to make classifications in law when the classifications are rooted in reason").
Cases following Griffin also addressed rights implicated when one is a criminal defendant. Like Griffin, which ultimately concerned the right to be free of wrongful imprisonment/right to liberty, the right at issue in Williams v. Illinois concerned the imprisonment of an indigent criminal defendant when a non-indigent criminal defendant in the same circumstances would not have faced that punishment. 399 U.S. 235 (1970). In Williams, the criminal defendant received the maximum punishment for theft of one year in jail and a $500 fine, plus $5 in court costs. Id. at 236. The judgment provided that if the defendant did not pay the fine and court costs by the end of his one-year jail term, he would remain in jail until that debt was paid, to be calculated at the rate of $5 per day. Id. at 236-37. This equaled 101 days in addition to the maximum term of imprisonment he had already received. Id. The Court held that it was unconstitutional to subject an indigent individual to imprisonment beyond the maximum sentence when he was not willfully refusing to pay. Id. at 244. The defendant presented this as an equal protection argument which the Court relied on to hold that the "Equal Protection Clause
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of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Id.; see also id. at 242 ("By making the maximum confinement contingent upon one's ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment."). The Court made clear that it did not preclude imprisonment for one who willfully refused to pay the fine. Id. at 242 n.19.
The next year, the Court struck down a Texas law which allowed conversion of the defendant's fine into a jail term even though the traffic offense violation limited punishment to a fine and even though the fine was unpaid due to the defendant's indigency. Tate v. Short, 401 U.S. 395 (1971). The Court observed that Tate involved offenses punishable by fines only, but it analogized to Williams nonetheless because, the Court explained, an individual's imprisonment for nonpayment is the same unconstitutional discrimination as in Williams given that the individual is subjected to imprisonment solely because of his indigency. Id. at 397-98. The Court explained that because Texas had legislated a "fines only" policy for traffic offenses, that statutory ceiling could not, consistent with the Equal Protection Clause, limit punishment to payment of a fine for a defendant able to pay but convert it to a prison term for a defendant unable to pay. Id. at 399. Although Tate involved a traffic violation and not a more serious charge, the statute at issue, like the statutes in Griffin and Bearden, implicated the defendant's right to be free from wrongful incarceration.
Finally, in Bearden, the Court once again was concerned with the imprisonment of a criminal defendant solely because the defendant could not pay a fine. 461 U.S. at 661. In that
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case, the Georgia sentencing court revoked the defendant's probation for failure to pay a fine and make restitution. Id. at 662-63. Justice O'Connor summarized the prior holdings of Griffin and subsequent cases after noting that the Court had "long been sensitive to the treatment of indigents in our criminal justice system." Id. at 664. She also noted, however, that the Court had "recognized limits on the principle of protecting indigents in the criminal justice system." Id. For example, the Court held that indigents had no constitutional right to appointed counsel for a discretionary appeal. Id. at 664-65 (citing Ross v. Moffitt, 417 U.S. 600 (1974)). It also rejected an equal protection challenge to a federal statute permitting a district court to provide an indigent with a free trial transcript only if the court certified that the challenge to the conviction was not frivolous and the transcript was needed to prepare the petition. Id. at 665 (citing United States v. MacCollum, 426 U.S. 317 (1976) (plurality opinion)).
The Bearden Court explained that "[d]ue process and equal protection principles converge in the Court's analysis in these cases." Id. at 665. Acknowledging that most decisions relied on an equal protection analysis, Justice O'Connor explained that the Court "generally analyze[s] the fairness of relations between the criminal defendant and the State under the Due Process Clause, while we approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause." Id. The parties presented arguments based on equal protection and strenuously argued whether strict scrutiny or rational basis was the correct standard of review. Id. There was no doubt that the state had treated the defendant differently from a person who did not violate probation by failing to pay the fine. Id. But, the Court believed that the question of whether the differential treatment violated the Equal Protection Clause required the
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determination of whether, and under what circumstances, a defendant's indigent status may be considered in the decision whether to revoke probation. Id. at 665-66. This, the Court explained, was "substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine." Id. at 666.
Continuing, the Court enunciated the four-part test Plaintiffs rely on here: Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as "the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, and the existence of alternative means for effectuating the purpose." Id. at 666-67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)) (footnote and brackets omitted). Following Williams and Tate, the Court concluded in Bearden that if a state determines that a fine or restitution is the appropriate sentence for the crime, it is unconstitutional for the state to thereafter imprison the defendant solely because she or he lacks the resources to pay. Id. at 667-68. The Court was careful to distinguish situations where a defendant is at fault for failing to pay the fine. Id. at 668 (noting that "[i]f the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection."). In reaching its conclusion, the Court rejected the state's rationales for why it had to revoke probation in such circumstances. Id. at 671-72. The Court also noted alternatives such as extending time for payments, reducing the fine, or performing public service. Id. at 671-72. In the end, the Court held that "in revocation proceedings for
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failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay." Id. at 672. If the probationer willfully refused to pay or failed to make sufficient bona fide legal efforts to acquire the funds to pay, the court could, consistent with the Constitution, revoke probation and sentence the defendant to imprisonment. Id. If the probationer satisfied the court that he could not pay despite such bona fide efforts, the court had to consider alternatives. Id. The court could revoke probation and order imprisonment only if alternative measures were inadequate to meet the state's interests in punishment and deterrence. Id. "To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment." Id. at 672-73.
The Griffin/Bearden line of cases firmly establishes that the government may not imprison a criminal defendant solely due to the person's non-willful inability to pay a fee or a fine. Grounded in concepts of due process and equal protection, the Court has found such statutes to be "fundamentally unfair." The Ninth Circuit has applied this line of reasoning, including in a case challenging a federal sentencing guideline provision which imposed additional criminal history points at sentencing, and thus increased the defendant's period of incarceration, because of the defendant's failure to pay a fine imposed in a prior state-court conviction. United States v. Parks, 89 F.3d 570 (9th Cir. 1996). The court, relying on Bearden, concluded that the imposition of criminal history points for failure to pay a fine without a finding that the failure to pay was willful, violated the Fifth Amendment Due Process Clause. Id. at 57273. Imposition absent such inquiry solely based on nonpayment would be "'fundamentally unfair.'" Id. at 573 (quoting Bearden, 461 U.S. at 668).
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These cases have all arisen in the context of the criminal justice system where fundamental rights of liberty are implicated. Few cases have extended these principles beyond that context. The Supreme Court addressed this issue in M.L.B. v. S.L.J, a case in which the state court had terminated a mother's parental rights and then dismissed her appeal because of her financial inability to comply with statutes requiring her to pay more than $2,000 in record and transcript preparation fees. 519 U.S. 102 (1996). Justice Ginsburg explained that Griffin was the "foundation case" for issues concerning access to appeal in general and transcripts required for appeal in particular. Id. at 110. Before analyzing the particulars of the statute at issue in M.L.B., she discussed the application of Griffin beyond "cases in which imprisonment is at stake." Id. at 111.
One of those cases was Mayer v. Chicago, 404 U.S. 189 (1971), which involved an indigent defendant convicted on non-felony charges who received a fine for each offense. He intended to appeal based on prosecutorial misconduct and insufficient evidence, but the state provided free transcripts only for felony cases. The Mayer Court rejected the argument that Griffin was distinguishable because the defendant in that case, and defendants in other "transcript" cases, were sentenced to confinement. 404 U.S. at 196. The city argued that a defendant's interest in a transcript for a fine-only non-felony case was outweighed by the state's fiscal and other interests in not burdening the appellate process. According to Mayer, such an argument "misconceives" Griffin's principle. Id. Griffin, the Mayer Court stated, did not "represent a balance between the needs of the accused and the interests of society[.]" Id. Instead, "its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way." Id. at 196-97. "The invidiousness of
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the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in sentences that may be imposed." Id. at 197.
As discussed by Justice Ginsburg in M.L.B., the Mayer Court was concerned with access to the courts. M.L.B., 519 U.S. at 112 (noting statements in Mayer that Griffin prohibited "'making access to appellate processes from even the State's most inferior courts depend upon the convicted defendant's ability to pay,'" and that an "impecunious party, . . . whether found guilty of a felony or conduct only 'quasi criminal in nature,' 'cannot be denied a record of sufficient completeness to permit proper appellate consideration of his claims[.]'") (quoting Mayer, 404 U.S. at 196-98) (citation and brackets omitted). Justice Ginsburg also noted, however, that the Court had limited the application of the "flat prohibition of bolted doors that the Griffin line of cases securely established[.]" Id. at 112 (internal quotation marks omitted) (noting that under its cases, the right to counsel was "less encompassing" given that a state must provide trial counsel for an indigent felon charged with a felony but not when charged with a non-felony with no term of imprisonment actually imposed, and that a state must provide appellate counsel to poor defendants facing incarceration who file appeals as of right but not those pursuing a discretionary appeal or petitioning for review with the Supreme Court).
Next, Justice Ginsburg discussed the "narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party's ability to pay court fees." Id. at 113. Summarizing her discussion of those cases which involved access to the courts for those seeking to dissolve their marriages and tenants seeking to appeal adverse decisions in eviction cases, she concluded that "this Court has not extended Griffin to the broad array of civil cases." Id. at 116. The narrow set of cases which the Court "set apart from the mine run of [civil]
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cases" was limited to those "involving state controls or intrusions on family relationships." Id. "In that domain," the M.L.B. Court wrote, "to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of intrusion." Id.
The Court turned to the specific issue presented in the case and noted the state's argument that the case belonged with "the generality of civil cases, in which indigent persons have no constitutional right to proceed" in forma pauperis and the mother's contrary argument that the "accusatory" state action she was trying to "fend off" was "barely distinguishable from criminal condemnation in view of the magnitude and permanence" of the loss she faced. Id. at 119. Discussing the "character and intensity of the individual interest at stake" and the "state's justification for its exaction," the Court found the mother's "stakes," which it described as the forced dissolution of her parental rights, to be large and substantial. Id. at 120-21 (noting that "[p]arental status termination is irretrievably destructive of the most fundamental family relationship") (brackets omitted). While the state had a legitimate interest in offsetting the costs of the court system, the Court concluded that the "tightly circumscribed category of parental status termination cases," where appeals are few, would not impose an undue burden on the state. Id. at 122.
Seeking to allay concerns that its holding would open "floodgates" if Griffin was not restricted to criminal cases, id. at 127, the Court affirmed the general rule that fee requirements are ordinarily examined only for rationality and that the state's need for revenue to offset costs generally "satisfies the rationality requirement[.]" Id. at 123. But, the Court allowed that there were two exceptions to the general rule: (1) the "basic right to participate in the political process
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as voters and candidates cannot be limited to those who can pay for a license"; and (2) "access to judicial processes in cases criminal and quasi-criminal in nature" cannot "turn on ability to pay." Id. (internal quotation marks omitted). Although a parental termination order did not fit neatly into either of those exceptions, the Court found that under its prior decisions, "parental termination decrees are among the most severe forms of state action." Id. at 128. Thus, the Court concluded, it was satisfied that the parental status termination cases "work a unique kind of deprivation" and are therefore set apart from "mine run civil actions" and even other domestic relations matters such as divorce, paternity, and child custody. Id. at 127 (internal quotation marks omitted). Such cases involve the "awesome authority of the state to destroy permanently all legal recognition of the parental relationship," and the "label 'civil' should not entice [the Court] to leave undisturbed the state courts' disposition of this case." Id. at 128 (internal quotation marks omitted).
The Ninth Circuit discussed M.L.B. in Hernandez which involved the detention of noncitizens in removal proceedings who were eligible for release on bond but who could not afford to pay the bond. Hernandez, 872 F.3d 976. The bond determinations were made without considering the detainee's ability to pay or alternatives which would ensure the detainee's future appearance. Id. at 983. The plaintiffs raised due process, equal protection, and excessive bail claims, but the court addressed only the Fifth Amendment due process claim. Id. at 990 n.16. The court noted that the right to be free from imprisonment, meaning government custody, detention, or other forms of physical restraint, was at the heart of the Due Process Clause, and asked whether consideration of the detainees' financial circumstances, as well as of possible alternative release conditions, was necessary to ensure that the conditions of release would be
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reasonably related to the government's interest in securing their appearance at a future hearing. Id. at 990-91. The court affirmed the district court's grant of a preliminary injunction because it was likely the plaintiffs would succeed on the merits. In reaching its conclusion, the court compared immigration cases to the parental termination decree in M.L.B. Id. at 993. Both were "set 'apart from mine run civil actions'" because they "'involve the awesome authority of the State' to take a 'devastatingly adverse action,'" which in immigration cases, is the state's power to remove individuals from their homes and separate them from their families. Id. (quoting M.L.B., 515 U.S. at 127-28).
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. The incarceration cases clearly implicate the fundamental right to be free from wrongful detention, meaning the fundamental right to liberty. The access to courts cases have arisen in either (1) the criminal context where the rights to both a fair trial and a conviction only upon proof beyond a reasonable doubt are implicated by effectively denying an appeal to an indigent defendant, or (2) the narrow circumstance of a parental termination where the state's "awesome" authority to permanently destroy what the Supreme Court had already recognized as "the most fundamental family relationship" was at stake. M.L.B., 519 U.S. at 121 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
None of those rights or interests are present here. As the Fowler I court recognized, the Griffin/Bearden line of cases does not establish "that it is fundamentally unfair in a constitutional sense (i.e. in violation of the Due Process Clause) for a state to deprive a person of a property interestS such as a driver's licenseS because of the person's inability to pay a fine associated with
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that interest." 2017 WL 6379676, at *7. The case law, the court concluded, does not support extending the Due Process Clause that far. Id. The court analogized to a state legally foreclosing on a residence for failure to pay property taxes. Id. Such action may lead to the homeowner becoming homeless but, the state's "action is not barred by the Due Process Clause." Id. To be sure, the Fowler I court explained, it is unfair and unwise to deprive individuals of their driver's licenses because of an inability to pay. Id. But, it is not "unfair" in a constitutional sense. Id. Absent a fundamental right or suspect class, the government must act only rationally and afford certain procedural protections before the deprivation of a protected interest. Id. Putting aside the procedural issue, which the court addressed later, the court concluded that the plaintiffs' "fundamentally unfair" argument based on Griffin/Bearden was not likely to succeed. Id.
The judge in the Robinson and Thomas cases reached the opposite conclusion. The discussion in those cases is extensive, but even under a rational basis review which the court felt bound to apply by Johnson v. Bredesen, 624 F.3d 742 (6h Cir. 2010), a controlling Sixth Circuit case, the court determined that the plaintiffs' Griffin/Bearden claims had merit. Robinson I, 2017 WL 4418134, at *7-9 (concluding likelihood of success on the merits of the Griffin/Bearden claim); Robinson II, 326 F.R.D. at 149-59 (denying defendants' motion to dismiss Griffin/Bearden claim); Thomas I, 303 F. Supp. 3d at 607-19 (denying motion to dismiss Griffin/Bearden claim). Under that analysis, the judge concluded that the license suspensions for indigent traffic or court debtors were not rationally related to a state interest.
The Robinson/Thomas court believed that the Griffin line of cases required it to consider the suspension of driver's licenses for nonpayment of traffic debt absent an exception for those willing but unable to pay, as "the equivalent of a statute that imposes a harsher sanction on
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indigent debtors than their non-indigent peers." Thomas I, 303 F. Supp. 3d at 614. Then, the court explained, if the statutory scheme affords no adequate exception for indigence, Griffin and the cases following it "instruct this court to consider that scheme as the constitutional equivalent of the state's using, as the sole justification for its action, the poverty of the defendant." Id. (internal quotation marks omitted). The court's discussion of the issue in these cases emphasized the impact of the law on the indigent debtor's right to self-sufficiency. Thomas I, 303 F. Supp. 3d at 613, 615; Robinson II, 326 F.R.D. at 154 (noting that the Sixth Circuit recognized that the right to self sufficiency justified "an at least somewhat more searching standard of review") (citing Johnson); but see id. at 153 (noting that self-sufficiency and self-respect had not been recognized by the Sixth Circuit or Supreme Court as fundamental rights in a constitutional sense). It also discussed the impact on the right to travel, and while acknowledging that the right does not generally prohibit the state from denying a single mode of transportation, the court noted that the law may still impact driving in a way that potentially triggers a heightened level of scrutiny. Thomas I, 303 F. Supp. 3d at 613; Robinson II, 326 F.R.D. at 153-54.
I respectfully disagree with Robinson and Thomas and believe that the Fowler court made the correct ruling. Although Robinson and Thomas purported to apply a rational basis review, the conclusions reached suggest that the court in those cases applied a more stringent level of scrutiny. As a result, I find these decisions somewhat internally inconsistent.
I find no support in the caselaw for Plaintiffs' assertions of a constitutional right to selfsufficiency. Additionally, wealth/poverty is not a suspect class. E.g., Harris v. McRae, 448 U.S. 297, 323 (1980) ("this Court has held repeatedly that poverty, standing alone is not a suspect classification"); see also Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458 (1988) ("We have
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previously rejected the suggestion that statutes having different effects on the wealthy and the poor should on that account alone be subjected to strict equal protection scrutiny.").
As for the right to travel, neither the Supreme Court nor the Ninth Circuit has recognized a constitutional right to intrastate travel. Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 944 n.7 (9th Cir. 1997); see also Mem'l Hosp. v. Maricopa Cty., 415 U.S. 250, 255-56 (1974) (declining to decide whether the Constitution guarantees the fundamental right of intrastate travel); Fruitts v. Union Cty., No. 2:14-cv-00309-SU, 2015 WL 5232722, at *6 (D. Or. Aug. 17, 2015) (finding no constitutional right to intrastate travel; explaining that the right had not been recognized by the Ninth Circuit or Supreme Court and that district courts in the Ninth Circuit have "refused to expand" the constitutional interest in interstate travel to include such a right); adopted by J. Simon, 2015 WL 5232696 (D. Or. Sept. 8, 2015).
A burden on a single mode of transportation does not implicate the constitutional right to interstate travel. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). There is no fundamental right to drive. Id. at 1206 (citing Dixon v. Love, 431 U.S. 105, 112-16 (1977)). Nor is there a fundamental right to a driver's license. Franceschi v. Yee, 887 F.3d 927 (9th Cir. 2018), cert. denied, No. 18-585, 2018 WL 5792470 (U.S. Dec. 10, 2018). And in Miller, the court rejected the plaintiff's argument that driving was an essential mode of transportation given the importance of cars in modern society. Miller, 176 F.3d at 1205. Although, as Plaintiffs note, the Supreme Court has acknowledged, in a case invalidating a New York law awarding civil service preference points to veterans who lived in New York at the time they entered military service, that the right to interstate travel may be implicated when "it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to
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penalize the exercise of that right," the Court noted that "heightened scrutiny [is] triggered" "only where a State's law operates to penalize those persons who have exercised their constitutional right to interstate migration[.]" Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903, 905 (1986) (citations and internal quotation marks omitted). That is not the situation here.
I agree with Plaintiffs that the loss of their driver's licenses causes serious problems in many areas of their lives from employment to health care to recreation. There is no doubt that for most Americans, driving makes life easier, whether one lives in a large city, a small city, or in the country. It is also true that some parts of Oregon are better served by alternative public transportation systems than others. But, as the Fowler I court explained, appropriately in my opinion, "[f]undamental rights are not identified by looking so narrowly or locally[.]" 2017 WL 6379676, at *8 (rejecting the plaintiffs' argument that the court should recognize a fundamental right where public transportation is "woefully inadequate" and plaintiffs lacked access to other modes of travel). Fundamental rights, the Fowler I court noted, are those rooted in the nation's history and tradition. Id. Geography and transportation systems cannot control constitutional rights. A resident of Mission, Oregon cannot have a constitutional right to travel while a resident of Portland, Oregon does not. Thus, despite difficulties presented by alternative transportation systems, or the lack thereof, a challenge to the suspension of a driver's license is not "fundamental in a national or constitutional sense." Id.
My reading of the Robinson and Thomas cases indicates that the court there inappropriately found or implied fundamental rights which have not been recognized as having constitutional protection. The court inappropriately applied a heightened level of scrutiny to the statutory scheme. This in turn, prompted the court to extend the Griffin/Bearden cases beyond
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the parameters of criminal justice or quasi-criminal justice cases where incarceration or equal access to the courts was at stake, and beyond that rare civil case such as M.L.B. where the state wields its "awesome" power to potentially deprive a parent of her or his most fundamental of family relationships. I do not believe the Griffin/Bearden "more searching" or "more careful" inquiry or "close examination" of the government's interest is required in this case.
In Franceschi, a recent Ninth Circuit case, the court considered a statutory scheme which suspended the driver's licenses of individuals who appeared on the state's "top 500" list of delinquent taxpayers who owed at least $100,000. 887 F.3d at 933-34. The court explained that "[g]overnmental conduct, such as revocation of a driver's license, that neither proceeds along suspect lines nor infringes fundamental constitutional rights, is subject to rational basis review[.]" Id. at 940. There, the plaintiff argued that the "top 500" list and suspension statutes created selection criteria that had "the effect of meting out unequal treatment to similarly situated individuals" and was arbitrary and unreasonable. Id. The court reviewed the argument under a rational basis analysis and concluded that the state had legitimate and significant interests supporting a rational basis. Id. at 940-41.
Oregon's challenged statutes are rationally related to a legitimate state interest.7
7 Here, even though the statute is facially neutral, it has a disparate impact on indigent drivers. Fowler I concluded that with a facially neutral suspension statute and no evidence of discriminatory intent, even rational basis review was unnecessary. 2017 WL 6379676, at *8. The court there explained that when a "challenged law neither creates classifications nor burdens a fundamental right," "'even the deferential rational basis scrutiny that is applied to ordinary governmental classifications is not appropriate.'" Id. (quoting Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997)). Absent discriminatory intent, a facially-neutral law remained so even if it had a disparate impact, such as the Michigan driver's license suspension statute which adversely affected indigent drivers. Id. (citing Washington v. Davis, 426 U.S. 229, 248 (1976)). Defendants here do not make that argument and argue instead that the state's laws have a rational
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Defendants argue that the state has a strong interest in enforcing traffic laws to deter future misdeeds. Defs.' Mem. 12, ECF 24; see also id. at 9 ("the suspension of driving privileges is effective in obtaining compliance through payment of traffic fines"). Certainly, traffic laws exist as a basic manifestation of the state's undisputed interest in protecting the health and safety of its citizens. Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995) ("the Government . . . has a significant interest in protecting the health, safety, and welfare of its citizens"). Thus, the state has a legitimate interest in punishing, in some form, violations such as speeding, driving while talking on a cell phone, failure to obey a traffic control device, failure to use proper car seats, etc. Even a broken tail light implicates visibility and thus, safety. Fines, therefore, are rationally related to enforcement of traffic laws and to the deterrence of continued violations. The sting of paying a fine will hopefully prevent future unsafe driving practices. Even those who can pay the fine likely do not desire to part with their money for this reason.
Methods by which the state can enforce compliance with the fine requirement, therefore, are rationally related to the safety goal. Without a compliance mechanism, the fine is toothless and without deterrent effect. Accordingly, fines are reduced to a judgment, subject to payment or collection by a number of methods, and eventually or additionally, can result in the violator's license suspension if the fine is unpaid. Nonetheless, as the judicial officers explain, the threat of
basis. Franceschi suggests that rational review should be used. Cases addressing an adverse impact on indigent individuals indicate that as well. See, e.g., M.L.B., 519 U.S. at 126-27 (rejecting the defendants' argument that under Washington v. Davis, the transcript law was facially neutral and no equal protection violation was shown just because of an allegedly disparate impact on the indigent; noting that a facially discriminatory law may be discriminatory in operation and that the statute was not merely "disproportionate in impact" but "wholly contingent on one's ability to pay" and thus "visit[ed] consequences on two categories of persons.") (internal quotation marks and brackets omitted). 48 - OPINION & ORDER

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suspension is an effective tool to coerce payment. Of course, compliance efforts may be ineffective as to those whose life circumstances leave them on the edge of economic survival every day. But, the evidence in the record shows that even as to those individuals, the threat of suspension, or an actual suspension, has motivated the individual to return to the court to attempt to establish a payment plan or to obtain a reduction in the traffic debt. While not always successful, the threat of suspension has resulted in compliance in some occasions.
Under rational basis review, the law will be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Franceschi, 887 F.3d at 940 (internal quotation marks omitted). Moreover, that the statute may be overinclusive by its enforcement as to indigent traffic debtors with no means of paying the fine, does not, under rational basis review, render it unconstitutional. E.g., Vance v. Bradley, 440 U.S. 93, 108 (1979) (perfection is not required); Dandridge v. Williams, 397 U.S. 471, 485 (1970) (classification need not be made with "mathematical nicety") (internal quotation marks omitted); Gallinger v. Becerra, 898 F.3d 1012, 1018 (9th Cir. 2018) (rejecting the plaintiffs' argument that a classification was too broad to be rationally related to a legitimate government interest as contrary to Supreme Court precedent upholding classifications that are underinclusive and overinclusive under rational basis review). Finally, even if the challenged statute sometimes produces unequal and unfair results, it does not necessarily fail rational basis review. United States v. Padilla-Diaz, 862 F.3d 856, 862 (9th Cir. 2017); see also Nat'l Ass'n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1051 (9th Cir. 2000) (indicating that under rational basis review, a state law is constitutional even if it is "'unwise, improvident, or out of harmony with a particular school of thought,'" as long as it bears a rational relationship to
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some legitimate end) (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955)). Oregon's driver's license suspension statutes for the nonpayment of traffic debt are reasonably related to the state's legitimate interest in enforcing fines for violation of traffic laws.
Based on my determinations that the challenged statute, either facially or in its application, does not implicate a fundamental constitutional right, does not implicate a suspect classification, and is rationally related to a legitimate state interest, Plaintiffs are not likely to succeed on a "fundamental fairness" claim under Griffin/Bearden. IV. Second Claim for Relief - Strange Equal Protection
Plaintiffs' second claim addresses the distinction between indigent traffic debtors subject to driver's license suspensions and indigent debtors who are exempted from such suspensions. Plaintiffs argue that there are three kinds of similarly-situated indigent debtors who, unlike Plaintiffs, are not subject to license suspension for unpaid debt, or are given the ability to demonstrate inability to pay: (1) traffic debtors who committed bicycle, pedestrian, or parking offenses; (2) private debtors generally; and (c) child support debtors.
Plaintiffs base this claim on Strange, which held that a Kansas recoupment statute violated the Equal Protection Clause by permitting the state to recoup court-appointed attorney's fees from indigent criminal defendants without permitting them to raise any of the defenses available to other civil judgment debtors. 407 U.S. at 141-42. Exemptions available generally to other civil judgment debtors included restrictions on the amount of disposable income subject to garnishment and protection from wage garnishment. Id. at 135. The Court indicated that under appropriate circumstances, a state's claim to reimbursement may take precedence over the claims of private creditors, and that enforcement procedures with respect to judgments did not need to
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be identical. Id. at 138. But, while the Kansas statute stated that a judgment lien as to a criminal defendant was comparable to other judgments under the state's civil procedure code, the statute then omitted the exemptions in the civil procedure code which were designed "primarily to benefit debtors of low and marginal incomes," from the enforcement of reimbursement judgments. Id. at 139. The Court explained that the Equal Protection Clause "imposes a requirement of some rationality in the nature of the class singled out" and that such rationality is "lacking where . . . the State has subjected indigent defendants to such discriminatory conditions of repayment" that are not imposed on other judgment debtors. Id. at 140 (internal quotation marks omitted).
Two years after Strange, the Court revisited the issue in Fuller v. Oregon, 417 U.S. 40 (1974). There, an Oregon recoupment statute retained all of the exemptions accorded to other judgment debtors. Id. at 47-48. The Court held that the statute did not violate equal protection. Id. The statute was directed only to convicted defendants who were indigent at the time of the criminal proceeding and who later gained the ability to pay the expenses of legal representation. Id. at 46. The Fuller Court explained that in Strange, the "offending aspect of the Kansas statute was its provision that in an action to compel repayment of counsel fees, none of the exemptions provided for in the code of civil procedure (for collection of other judgment debts) shall apply to any such judgment[.]" Id. at 47 (internal quotation marks omitted). Strange, the Fuller Court noted, "found that the elimination of the exemptions normally available to judgment debtors 'embodied elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.'" Id. (quoting Strange, 407 U.S. at 142) (brackets omitted).
"[N]o such infirmity" was present in the Oregon statute. Id. No express denials of
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exemptions from execution given to other judgment debtors were included in the Oregon statute. Id. Instead, the "convicted person from whom recoupment is sought" retained "all the exemptions accorded other judgment debtors," as well as the ability to show that the recovery of the costs would impose a hardship. Id. Thus, the Oregon statute was "wholly free of the kind of discrimination that was held in [Strange] to violate the Equal Protection Clause." Id. at 47-48.
Plaintiffs argue that the central holding of Strange requires "striking down statutes that provide more of a safety net to indigent private debtors than to indigent criminal debtors, and upholding statutes relating to debt collection that do provide for an indigency determination and exception." Pls.' Mot. 32-33. Because Oregon's license suspension scheme singles out indigent traffic debtors for "uniquely worse treatment relative to other kinds of indigent debtors," Plaintiffs argue that the statute violates equal protection under Strange. Defendants argue that Strange does not apply "because the challenged statutory scheme does not expressly eliminate any exemptions that would ordinarily be available to judgment debtors with respect to the collection of government debt." Defs.' Mem. 8.
Defendants' argument is taken directly from the Fowler I decision which concluded that the plaintiffs' Strange claim was unlikely to succeed on the merits. Fowler I, 2017 WL 6379676, at *9-10. The Michigan license suspension statutes, the court explained, were like the Oregon statutes at issue in Fuller and "do not expressly eliminate any exemptions normally available to judgment creditors with respect to the collection of a government debt." Id. at 9. In reaching its conclusion, the court observed that "[n]othing in Strange suggests that the Court's holding would apply here[.]" Id. (further remarking that the plaintiffs cited no case "reading the Equal Protection Clause's guarantees in a way that Plaintiffs assert Strange does.").
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I agree with the Fowler I case. The issue presented in Strange and considered again in Fuller is not present here. Nothing in the Oregon statutory scheme regarding the collection of a judgment for unpaid traffic debt provides for treatment different from any civil judgment debtor by creating exemptions from ordinary collection methods. And, under my reading of Strange, it was the explicit exemption from the wage garnishment protections available to other civil judgment debtors that the Court found unconstitutional. Thus, I disagree with the Robinson court's determination that the Robinson plaintiffs showed a likelihood of success on the merits or stated a claim under Strange because Tennessee "heaped on additional tools of coercion." Robinson II, 326 F.R.D. at 160-61 (acknowledging that the Kansas statute in Strange removed protections but concluding that Tennessee's additional "tools of coercion" were analogous). As a result, Plaintiffs fail to establish a likelihood of success on the merits of the Strange claim.
Even if I were to consider Plaintiffs' argument to properly arise under Strange, I would still determine that Plaintiffs had not met their preliminary injunction burden on this claim. In a 1987 case, the Ninth Circuit observed that the Strange Court struck down the Kansas statute because it found the "'requirement of some rationality in the nature of the class singled out' not to have been met." United States v. Smith, 818 F.2d 687, 692 (9th Cir 1987) (quoting Strange, 407 U.S. at 140); see also Strange, 407 U.S. at 138, 139 (asserting that a state's judgment enforcement procedures need not be identical and indicating that the issue is whether there is a rational basis for singling out a class). Thus, rational basis is the relevant inquiry.
Here, fines imposed for traffic safety violations committed by those in a car, are, as explained above, rationally related to the state's interest in modifying driving conduct to comply with traffic laws. The fine is a behavior modification tool and the driver's license suspension
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assists in obtaining compliance with fine payment. Private debt does not originate in the same way. Violations of pedestrian, bicycle, and parking laws do not trigger the same need to address violation of traffic laws such as speeding, failure to obey a traffic control device, etc. Moreover, a driver's license is not even needed to cross a street or ride a bicycle. Child support obligations also do not originate in the same context. Thus, for each of the categories of distinguishable indigent debtors, there is a rational basis for the classification. No Strange equal protection claim is likely to succeed here. V. Third Claim for Relief - Procedural Due Process
Plaintiffs argue that Oregon's license suspension statutes for traffic debtors violate procedural due process because the statutes fail to provide an ability-to-pay hearing before suspension is effective. See Pls.' Reply 19 ("The absence of an ability-to-pay determination is the due process that plaintiffs assert is missing[.]"). They contend that the private interests at stake are fundamental, the risk of an erroneous deprivation is high, and any government interest in collecting traffic debt is actually harmed by the absence of an indigency determination given that indigent debtors cannot pay and the suspension actually interferes with the debtors' means of obtaining income to repay the debt. Plaintiffs argue that an assessment of these factors establishes that only a pre-deprivation notice and pre-deprivation hearing on the ability to pay satisfies due process. In response, Defendants contend that no fundamental rights are at issue, Plaintiffs received substantial process before suspension, and the government has a significant interest in enforcing traffic laws.
Mathews v. Eldridge is the foundational Supreme Court procedural due process case. 424 U.S. 319 (1976). "Procedural due process imposes constraints on governmental decisions which
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deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Id. at 332. The "fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 333 (internal quotation marks omitted). Due process, however, "is flexible and calls for such procedural protections as the particular situation demands." Id. at 334 (internal quotation marks omitted).
Under Mathews, the court weighs three factors to evaluate the sufficiency of procedural protections: (1) "the private interest that will be affected by the official action," (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards," and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 335; see also Yagman v. Garcetti, 852 F.3d 859, 864 (9th Cir. 2017) (explaining that "there are no hard and fast rules for determining the requisite timing and adequacy of pre- and post-deprivation procedures" and that once it is determined that a protected interest is at stake, a court applies the three-part balancing test established in Mathews to determine whether a pre-deprivation hearing is required and what specific procedures must be employed at that hearing given the particularities of the deprivation) (internal quotation marks and citation omitted).
A driver's license is a significant enough property interest to warrant procedural due process protections. Dixon v. Love, 431 U.S. 105, 112 (1977); Franceschi, 887 F.3d at 935. Plaintiffs argue that the private interests at stake, the right to self-sufficiency and travel, are fundamental rights and are of significant interest. They rely on the Thomas court's observation
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that the "substantive nature of the rights and facts at issue affects the application of the Eldridge factors." Thomas I, 303 F. Supp. 3d at 632. However, as previously explained, I find no fundamental rights implicated here. No one is losing his or her freedom or parental rights. The right to drive is simply not constitutionally fundamental. Thus, the private interests at stake are not as significant as Plaintiffs assert.
There is little risk of erroneous deprivation given that the suspensions are triggered by the objective fact of nonpayment of the fines. Mackey v. Montrym, 443 U.S. 1, 13 (1979) (upholding license suspension based on "objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him"); Crawford v. Blue, 271 F. Supp. 3d 316, 329 (D. Mass 2017) (discussing three-part Mathews test in case challenging driver's license suspension and citing Mackey). I understand Plaintiffs' position that the risk of erroneous deprivation is high under the procedures currently used because absent the opportunity to establish indigency, Plaintiffs' fundamental rights will be wrongfully deprived. But, Plaintiffs' characterization of the deprivation is founded upon an assumption that there is a constitutional right to an indigency determination in the first place and that the rights implicated by the suspensions are fundamental in a constitutional sense. As stated previously, I disagree with Plaintiffs on this point.8 I do not intend my conclusion to suggest that I am blind to the
8 The Fowler I court, although concluding that the plaintiffs' Griffin/Bearden and Strange claims were unlikely to succeed, nonetheless concluded that the plaintiffs were likely to succeed on their procedural due process claim. The court faulted the Michigan statutes for failing to inform individuals of the ability, with court approval, to pay traffic debt under a payment plan. 2017 WL 6379676, at *11. But, because the court had rejected the constitutional claims, it was error to consider the lack of such payment plan notice as procedurally deficient. Thus, I do not find the Fowler I opinion persuasive in regard to the procedural due process claim. In any event, the Michigan statutes which suspend the license upon extremely short notice are distinguishable
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fundamental effect that driver's license suspensions for nonpayment of traffic debt have on Plaintiffs' lives. I do not underestimate the adverse effects on their employment opportunities, recreational opportunities, access to medical care, and more. But, for the reasons previously explained, I do not find support in the caselaw for concluding that the rights they assert have been recognized as "constitutionally fundamental." Thus, Plaintiffs' articulation of the risk of erroneous deprivation is misplaced.
The second Mathews factor also looks at the probative value, if any, of additional or substitute procedural safeguards. Here, the fine is imposed only after a violation has been adjudicated by a court. See Franceschi, 887 F.3d at 937 (noting that the facts supporting suspension related to the plaintiff's tax deficiency had already been established through prior proceedings). If the court exercises discretion to initiate suspension of the license for nonpayment of the fine, the DMV issues a pre-deprivation sixty-day notice informing the violator that she or he may resolve the issue by returning to the court. Again, because I conclude that the Constitution does not require Plaintiffs' indigence to be assessed, the fact that the DMV sixty-day notice does not expressly inform the violator that the court may be willing to entertain a payment plan does not render the notice ineffective. Thus, the procedures currently used allow the violator to appear in court to contest the violation and then, if a fine is imposed and remains unpaid and the court notifies the DMV, the violator receives a pre-deprivation notice directing
for that reason alone. See Fowler I, 2017 WL 6379676, at *1 (under Michigan statutes, Secretary of State must suspend license within fourteen days of nonpayment with no pre-suspension notification); Fowler II, 2017 WL 6540926, at *2-3 (further explaining Michigan statutory scheme under which payment extensions for a maximum of two weeks are given only to a defendant who asks and only if the defendant can immediately pay half of the fine). 57 - OPINION & ORDER

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him or her to return to the court. At that point, the court may consider indigency and can create a payment plan or adjust the fine. The pre-deprivation notice also advises the violator of the right to administrative, albeit limited, review. Additional procedures here would be of little probative value.
Finally, the government has a strong interest in enforcing traffic fines to deter continuing traffic violations. E.g., Crawford, 271 F. Supp. 3d at 329 ("Massachusetts has a substantial interest in securing public safety on its roads by suspending the operating privileges of drivers who default on [civil motor vehicle infractions].") (internal quotation marks omitted).
When weighing all of these factors, I conclude that the Oregon scheme complies with procedural due process. The nature of the private interest, the nature of the government interest, and the low risk of erroneous deprivation support a determination that the opportunity to initially contest the violation and the pre-deprivation notice with its instructions to return to court and information regarding the right to administrative review, sufficiently protect an individual's property interest in his or her driver's license. VI. Remaining Preliminary Injunction Considerations
Having found that Plaintiffs are not likely to succeed on the merits of any of their claims, I do not need to consider the remaining preliminary injunction factors of the likelihood of irreparable harm in the absence of preliminary relief, balancing of the equities, and whether an injunction is in the public interest. Garcia, 786 F.3d at 740 ("Because it is a threshold inquiry, when a plaintiff has failed to show the likelihood of success on the merits, we need not consider the remaining three Winter elements.") (internal quotation marks and brackets omitted). Nonetheless, I briefly address the factors to provide the parties, and the Ninth Circuit should this
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ruling be appealed, my analysis. A. Irreparable Harm Plaintiffs argue that any constitutional violation is, by definition, irreparable harm.
Hernandez, 872 F.3d at 994 ("the deprivation of constitutional rights unquestionably constitutes irreparable injury") (internal quotation marks omitted). They also rely on the facts in their Declarations which show the harm they have suffered from their license suspensions and which will continue absent injunctive relief. Every day, they state, they are faced with the impossible choice between driving with a suspended license and risking deeper debt, and providing the basic necessities of life for themselves and their families.
Defendants note that under the heightened standard for a mandatory injunction, Plaintiffs must show that serious and extreme damage will occur absent preliminary injunctive relief. Defendants argue that the harm here is speculative. They acknowledge that Plaintiffs have described difficult lives in their Declarations. But, Defendants argue that Plaintiffs have not proven that without an immediate injunction some specific factors will cause an additional and irreparable harm. They note that any injunctive relief will not address past harm and the future harms are only speculative.
Defendants' evidence establishes that there is no irreparable harm because even if I granted the requested relief, Plaintiffs' licenses would remain suspended. According to Mary Garcia, a Driver Control Operations and Policy Analyst for the DMV, the DMV driving records for each Plaintiff9 show that each one would need to resolve additional suspensions and satisfy
9 At the time, Chase had not yet been added as a Plaintiff and thus, Garcia's review excluded him but included all the Plaintiffs named in the original Complaint. 59 - OPINION & ORDER

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other requirements, separate from the suspensions for failure to comply and related reinstatement fees which they challenge here, before they could drive with an Oregon driver's license. Garcia Supp'l Decl. ¶¶ 1, 3, ECF 36. Some Plaintiffs are unable to reinstate his or her driver's license without submitting an insurance certificate. Id. ¶¶ 4, 5, 7, 8 (Mendoza, Roberts, Bermudez, Ganuelas). All but Heath have additional suspensions for failure to appear. Id. Some need to take a new driver's test. Id. ¶¶ 5, 6, 7 (Roberts, Heath, Bermudez, Ganuelas). I agree with Defendants that Plaintiffs cannot satisfy the standard required to show serious and extreme damage which will be relieved by the injunctive relief sought. See Robinson I, 2017 WL 4418134, at * 6 (holding the temporary restraining order motion in that case in "abeyance" until the two named plaintiffs filed proof that they had obtained the necessary insurance to comply with the Tennessee driver financial responsibility laws which were not challenged).
B. Balance of Equities This factor requires the court to "balance the competing claims of injury" and "consider the effect on each party of the granting or withholding of the requested relief." Winter, 555 U.S. at 24 (internal quotation marks omitted). Plaintiffs argue that the balance of hardships "tips sharply" in their favor. Pls.' Mot. 40. Absent injunctive relief, they risk (1) additional traffic violations; (2) additional debt, (3) loss of employment opportunities that could alleviate their poverty, opportunities for family bonding, important life events, and cultural activities; and (4) continued struggles to provide food and ensure medical treatment of children being raised by single parents. Defendants rely on the administrative burden it would take to process about 90,000 license suspensions each year if it were required to assess a driver's ability to pay each time. At
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this point, absent certification of a class, the relief is restricted to only the six named Plaintiffs. Thus, the balance of equities goes to Plaintiffs.
C. Public Interest "The public interest inquiry primarily addresses impact on non-parties rather than parties." League of Wilderness Defs/Blue Mountain Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014) (internal quotation marks omitted). Plaintiffs note that if this Court certifies the class, the injunction sought will affect thousands of other indigent traffic debtors. Plaintiffs rely on the discussion in Hernandez which found that the interests of the general public would be served by granting a preliminary injunction requiring immigration officials to consider a detainee's financial ability to obtain a bond and alternative conditions of release. 872 F.3d at 996-97. The court there noted "[g]enerally, public interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution." Id. at 996 (internal quotation marks omitted). Plaintiffs argue that similar concerns are implicated here. The Hernandez court also noted that in addition to the hardships experienced by the Plaintiffs in the absence of an injunction, the court may consider the "indirect hardship to their friends and family." Id. (internal quotation marks omitted). Plaintiffs note the evidence here showing the collateral harm to Plaintiffs' children and spouses due to the loss of their driver's licenses. Id. Finally, the Hernandez court observed that the "general public's interest in the efficient allocation of the government's fiscal resources favors granting the injunction." Id. Plaintiffs argue that while discovery will reveal the actual financial and administrative resources expended by DMV in suspending the licenses of indigent traffic debtors, any money spent supporting this "irrational and counterproductive policy is a wasted one." Pls.
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Reply 26. Defendants make no separate "public interest" argument other than to state that their
administrative burden argument supports a conclusion that Plaintiffs cannot show that an injunction would be in the public interest.
Given that Plaintiffs are not likely to succeed on their constitutional claims and that their' argument relies on the class certification motion being granted, which it has not, at this point, I find the public interest to be a neutral factor.
SUMMARY For the reasons explained above, I conclude that Plaintiffs have not demonstrated a likelihood of success on the merits as to any of their three claims. Plaintiffs may be correct that suspending driver's licenses for indigent traffic debtors is an exercise in futility. While the record shows that the threat of suspension, or the actual suspension, of a driver's license has prompted some Plaintiffs to make payments on traffic debt from time to time, I assume that for the majority of indigent traffic debtors, suspension is misguided and counterproductive. I recognize that Plaintiffs' economic situations are marginal and the loss of their driver's licenses for their inability to pay their traffic debt burdens their lives with little chance that the state will actually collect full payment. Nonetheless, their predicaments, as desperate as they may be, do not raise constitutional claims. Absent constitutional implications, it is not the court's position to determine if the statutory scheme is "unwise," whether it "best fulfills the relevant social and economic objections" that the state "might ideally espouse," or if "a more just and humane system could not be devised." Dandridge, 397 U.S. at 487. As sympathetic as I am to Plaintiffs' plight, I am compelled to deny their motion. The solution here belongs in the legislative and
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executive branches of government. CONCLUSION
Plaintiffs' motion for preliminary injunction [2] is denied. IT IS SO ORDERED.

Dated this

day of

, 2018

Marco A. Hernandez United States District Judge

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