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Howard Herships 

P.O. Box I50I 

Carmichael, Ca 95609-I50 1 

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIAL 

HOWARD HERSHIPS, 

Plaintiff, 

v. 

DIRECTOR OF THE CALIFORNIA 

JUDICIAL COUNCIL IN HER OFFICIAL 

CAPACITY TANI CANTIL-SAKAUYE, 

DIRECTOR OF THE CALIFORNIA 

DEPARTMENT OF MOTOR VEHICLES 

JEAN SHIOMOTO AND THE 

SACRAMENTO COUNTY SUPERIOR 

COURT, 

Defendants. 

CV17 4 3 

No. Civil No. 

PLAINTIFF'S EMERGEN Y 

MOTION FOR EX PARTE 

TEMPORA Y RESTRAI NG 

ORDER PURSUANT TO RULE 

65 a FEDERAL RULES F 

CIVIL PROCEDURE I 

HEARING DATE: 

TIME: 

COURTROOM: 

JURISDICTION 

This case arises under the Fourteenth Amendment to the Constitution of the nited States 

and presents a federal question within this Court's jurisdiction pursuant to 28 U.S.C.,§§ I33I & 

I343 (a) (3) (4) and Title 42 U.S.C. § I983 and Federal Rules of Civil Procedure Rue 65 (a), 

26 as the issues in this case arise against defendants who suspended plaintiffs drivers lie nse under 

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defendants policy of automatically suspending drivers licenses for failure to pay a ourt imposed 

judgment from traffic court without providing an ability pay hearing. Defendants p actices were I 

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done even after the United States Department of Justice Civil Rights Division issuer a "Dear 

Colleague" Letter on March 14, 2016 informing the Defendant Director of the Cali1ornia Judicial 

Council of the serious violations of the clearly established United States Supreme ourt Law. 

Plaintiff has requested the Defendant Sacramento County Superior Court for an abi ity pay 

hearing and was informed that the Court has no jurisdiction to hold an ability to pa hearing as 

such plaintiff bring this TRO seeking emergency relief to obtain a Order reinstating plaintiff 

drivers license. 

STATEMENT OF UNDIPUTED FACTS 

1. On March 14, 2016, the United States Department of Justice Civil Rights ivision 

issued a "Dear Colleague" letter sent to the California Judicial Council pointing out hat the 

California Court system violates United States Supreme Court clearly, established ldw in 

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violation of "Due Process of Law" when traffic courts judges do permit the holding · fan ability 

pay hearing prior to suspension of drivers licenses. See Exhibit I. 

2. The United States Department of Justice in connection with said letter iss d a 

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$500,000.00 grant to California to address these issues and correct these violations o traffic court 

Defendants' who have their drivers' licenses suspended based upon the State of Cali ornia's 

license-for-pay all done without an ability to pay hearing and imposing exorbitant fe s solely to 

increase the California Court Revenue for use for the day to day operations of the C urts. 

3. Defendant Director of the California Judicial Council on December 16, 20 6, held a 

public hearing amending California Rules of Court, Rule 4.335 which, does not noti the some 

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5 million California Licensed drivers who illegally never had any ability pay hearing rior to 

California Department of Motor Vehicles suspending their driver's license, as the Rue change 

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only applies to current pending traffic court cases. 

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4. Defendant Sacramento County Superior Court asserted that because the ttaffic court 

judgment has been referred to GC Services the Court has no jurisdiction to entertain any ability ! 

pay hearing to reinstate plaintiff drivers' license see Exhibit 12 pages 70-76. 

5. Defendant Director of California Judicial Council in the California Admi istrative 

Office of the Court , Benchguide 83 § 83.16 holds that the trial court must impose t e penalty 

assessments/fines and fees even when the traffic court defendant is unable to pay it ecause under 

California Penal Code "it is not constitutionally inform" see Exhibit 1 pages 1-2. 

6. The California judicial decisions in People vs. Goldsmith 59 Cal4th 258 2014) held 

that a defendant in a criminal case is prohibited from demanding their right to cross examine a 

third party witness from a for profit firm who actually issued the traffic violation, hich is 

addressed also in the "Dear Colleague" letter as the firm has a direct pecuniary inte st to obtain a 

conviction to collect its commission on the ticket from rental of the equipment, see xhibit 3 at 

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Page 10. 

7. Defendants conduct of refusal to address federal constitutional issues can e shown in 

plaintiff's traffic court case even at the trial stage were the Court commissioner stat d that "I'm 

not in a position to rule on the constitutionality of something." See Exhibit 8 pa~e 56. 

8. Nor does defendants refusal to address these serious violations of the Sup 

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emacy 

Clause stop here as on after the Appellate Division of the Superior Court affirm the raffle court 

judgment holding that the Federal Constitutional Rights of Traffic Court defendant oes not apply 

in traffic court. I 

9. On July 8, 2015, after the remeittitur issued by the Appellant Division plai~tiffwas 

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ordered back to court before Judge Rockwell and plaintiff herein requested an abilitY! to pay 

hearing because plaintiff was on Med-Cal and under California Vehicle Code sectio 68323 

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would require a reduction under SB 405, the Judge denied plaintiffs rights under cl arly 

established federal law and started the process to have plaintiff's drivers license sustended, see 

Exhibit 12 at page 76. 

10. Defendant Director of California Department of Motor Vehicles then su pended 

plaintiff drivers' license without providing a hearing on the ability to pay on Augus 14, 2015. 

11. Plaintiff contacted the Defendant Directors Office and requested an adm nistrative 

hearing which was denied. 

12. Plaintiff once again objected to the California Department of Motor Veh cles 

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suspension of his drivers' license and defendant Department of Motor Vehicles ass rted via letter 

that plaintiff does qualify to have his penalty reduced by 80% based upon plaintiff eing on MedCal because the ticket was issued after Dec. 31, 20 13and plaintiff would have to pa the full 

amount ($1,610.00) plus $55.00 see Exhibit 10 page 63. 

13. California enactment of SB 405 recognizing the ability pay hearing was required and 

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set up procedures for traffic court defendants who had their driver's licenses suspenped to have 

up to 80% of the judgment reduced if the defendants were on a public benefit progr as defined 

by California Gov. Code§ 68632 violates the "Equal Protection of Law clause oft 

Amendment. 

14. Defendant Director of the California Judicial Council being the Chief J stice of the 

California Supreme Court knew at all times that a traffic court defendant who does ot poses a 

risk to public safety, had a right under clearly established United States Supreme C urt to hearing 

prior to having his drivers' license suspended based upon the ability to pay. 

15. Defendants at all times never provide defendants in traffic court procee ings with an 

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ability pay hearing as was required under clearly established United States Supre Court law 

as stated in the "Dear Colleague" letter from the United States Justice Dept. Civil 

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Division, see Exhibit 2 pages 3-11. 

16. Defendants have suspended some 5 million drivers' licenses resulting fr m a court 

imposed debt by traffic court which represents some 17% of the driving population all done 

without permitting a hearing on the ability to pay even through at all times one was required 

under clearly established United States Supreme Court Law. 

17. Defendants imposition of the penalty assessments/fines and fees "to the xtent that 

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cast doubt on the impartiality of the tribunal and erode trust between local governm nt and their 

constitutes, it continues." See Exhibit 3 at page 13. 

18. These practices of imposing exorbitant penalty assessments/fines and fe s, on top of 

the fine for public safety are being done for one purpose and one purpose only to g nerate 

revenue for the day to day court operations as can be proven by exhibits 4 & 5 whi shows that 

66% of all these fines go to the California Court system of one billion dollars a ye . 

19. These acts of imposing penalty assessments/fines and fees to generate re enue to the 

California Courts of one billion dollars annually violate Due process of law as state in the Policy 

Paper 2011-2012 "Courts Are Not Revenue Centers" issued by the Conference ofS ate Court 

Administrators, which cited Ward vs. Village of Monroeville 409 U.S. 57 (1972), ee Exhibit 6 

at page 51. 

20. The United States Supreme Court in Ward vs. Village of Monroeville 

( 1972), which is a traffic court case held that were the justice of the peace was also he mayor of 

the village and were the Village received 30% of the revenue generated by each co viction in 

traffic court violated Due Process of Law because the judicial office had a direct pe uniary 

interest in the outcome of each traffic ticket, here the California Courts share of eac~ penalty 

assessments/fines and fees amount to 66% and colle:t annually some I billion dollis which goes 

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to fund the day to day operations of the California Courts a direct pecuniary interest in the 

outcome of each and every traffic ticket. 

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21. Defendants Director of California Judicial Council in response to the Untted States 

Dept. of Justice, Civil Rights Division "Dear Colleague" letter enacted a Rules ofCturt change to 

address the failure of the traffic courts in the States of California to hold "Ability to ay Hearings 

by requiring the trial court to inform each traffic court defendants of their right to h ve a hearing 

held prior to having their drivers' license suspended see Rule 4.335, which was effe tive Jan. 1, 

2017. 

22. Plaintiff on January 4, 2017, submitted an application based upon plainti f was 

receiving public benefits, Med-Cal and has no ability to pay the $1,465.00 penalty 

assessments/fine and fees imposed to reinstate plaintiff drivers' license. 

23. Defendant Superior Court of California County of Sacramento refused ro permit 

plaintiff from filing for his ability to pay the traffic court penalty assessments/fines rd fees of 

$1,465.00 based upon Defendant Court's rules which prohibits the filing of ability tb pay traffic 

court judgments which have been assigned to collections, see Exhibit 12 at page 70 

24. Defendants herein conduct are in violation ofthe Title 42 U.S.C. sectio 1983 as 

defendants at all times have admitted that the penalty assessments/ fines and fees m st be reduced 

for defendants who have low income and on public benefits by up to 80% under S 405 and by 

the Rule change, (4.355), implements only after the United States Justice Dept, Civ 1 Rights 

Division "Dear Colleague" letter of March 14, 2016. 

25. Defendants Rule Change (Rule 4.225), however, does not provide for n tice served on 

the some 5 million California Drivers who have had their drivers licenses suspende without 

providing for an ability to pay hearing, nor does it provide for a Due Process hearin before a 

judge as here plaintiffs application was rejected by a deputy clerk of the Court wh has made a 

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judicial decision that the Rue 4.355 does not apply toward plaintiff, hardly a dete ination by a 

judicial officer under a Due Process of Law. 

26. Defendants illegal conduct as stated by both the "Dear Colleague "lette of March 14, 

2016 and the Investigation by the United States Dept of Justice Civil Rights Divisi n which turn 

"Court systems into these kinds of money making schemes-charging exorbitant fe s" see Exhibit 

3 page 13. 

27. Defendant Director of the California Judicial Council has no intentions fproviding 

hearings for traffic court defendants who were denied an ability to pay hearing pri r to have their 

drivers' license being suspended and just continues in their untoward ways. 

28. Defendants in fact admit that by enacting SB 405 which codified that t e suspension 

of the traffic court defendant for failure to pay was "not because they are a dang r to public 

safety, but because they could not pay fines associated with the minor traffic t cket and 

other related fees and assessments." See Exhibit 4 at page 34 Subsection (b). 

29. Defendants further admit by codifying California Vehicle Code§ 4' 008.8 (a) that 

a drivers' license "[l]n short, driving is a fundamental need of virtually every erson in the 

state." 

30. Plaintiffs driver's license is a protective interest that once issued cann be revoked or 

suspended "without the procedural Due Process required by the 14th Amendm nt" Bell vs. 

Burson, 402 US 535 at 539 (1972). 

3 1. Here defendants at all times refused and continue to refuse to provide a ability to pay 

hearing as there is no question of public safety and the absolute need for a drivers 1 cense in 

California. 

32. Unless enjoined by this Court, defendants' acts have severely injured pl intiffs ability 

to function without a drivers' license unable to do grocery shopping, unable to obt in medical 

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treatment for current medical conditions and unable to have medical procedures per ormed, which 

effects the quality of life. 

33. There is no public safety issue regarding reinstatement of plaintiffs drivtrs license as I 

the sole reason by defendants' acts for suspension was non-payment of court order ebt, all done 

without providing a ability pay hearing prior to the suspension. 

34. Defendants Sacramento Superior Court and Director of Motor Vehicles ven after the 

Defendant Director of the California Judicial Council enacted Rule 4.335 still refus s to provide 

an ability pay hearing. 

35. Given the importance of a driver's license to plaintiff and the significant risk of 

erroneous suspension due to lack of any meaningful opportunity for plaintiff to be h ard 

regarding the undisputed facts given rise to the suspension ofthe drivers' license an defendants' 

and the nature Defendants Sacramento Superior Court and Jean Shiomoto interests, efendants' 

interest as well as the impact additional procedural protection would have on Plainti s drivers 

license suspension practices that failed to comport with procedural Federal Due Pro~ess and 

Equal Protection of the law and as well as California Statutory protection under Cal fornia 

Vehicle Code§ 42003 and which defendants totally ignored and done to generate as much 

revenue for California Court system. 

36. Granting this request for TRO/Preliminary relief well serve the public in erest as 

California on a routine basis has suspends over 4.2 million California Drivers' licen es all done 

for failure to pay these exorbitant penalty assessments and fees/fines of over $1,410 00 and with 

ability to pay hearing. 

37. Plaintiff will prevail in this action as plaintiff had an absolute right to ab lity pay 

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hearing prior to defendant Shiomoto's suspension of plaintiffs driver's license base upon 

plaintiff being public benefits which would require the $1,410 penalty assessment t 

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38. Defendant Director Shiomoto is well aware of these violations as this ve department 

was sued in the pass over the very same grounds in a class action law suit and the C ifornia 

Court of Appeal affirmed the granting of a TRO /Preliminary injunction and the Cal fornia DMV 

had to pay some 5.6 million dollars to a class of some 573 plaintiffs who had their d ·vers licenses 

illegal suspended. 

39. Defendants acts herein has "criminalized poverty" by never inquiring o the ability 

to pay or make a finding of fact that failure to pay was in fact willful which is requir d prior to 

suspension of a drivers' license under California Vehicle Code§§ 43002 and 40508 b) these acts 

of defendants are done for one reason and one reason only is to extract as much mon y from the 

uninformed traffic court defendant of the exorbitant penalty assessment and fines, w ich are the 

highest of any state $1,410.00 in California vs. New York $250.00. 

40. Defendants acts of holding a hearing, which does not comport to Due Pro ess of law 

which is required by United States Supreme Court clearly established law that prior t suspension 

of an drivers' licenses a defendant must be provide an ability to pay hearing, which d fendants 

are all times refuses to do. 

4I. Defendants at all times make no attempt to inform all defendants who hav 

drivers licenses suspended in violation of an ability to pay hearing as defendants pro eed in their 

untoward ways in direct violation of the defendants rights to have their drivers license reinstated 

as relief required is in the public interest as the integrity of the California Court syste is placed 

in serious jeopardy as willful denial of a Constitutional right cannot be accomplished 

notifying an uninformed defendant. 

42. Defendants herein are all operating under Color of State Law and these act 

complete absent of fundamental fairness as clearly a judicial officer is not allowed to i pose a 

penalty on a traffic court defendant, which violates United States Supreme Court clear y establish 

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as the Supremacy Clause of the Constitution prevents that. 

43. Defendants in response to the United States Justice Department Civil 

"Dear Colleague" letter of March 14, 2016, responded by enacting a new rule of 

4.335 made effective on Jan. 1, 2017, that defendants in traffic must be informed 

pay hearing. 

44. However, Defendants have at all times refused to address their pastille al and 

unconstitutional acts which have suspended over 5 million drivers licenses all don 

clearly established law. 

45. Defendants refusal to inform all 5 million California drivers who haves ffered 

suspension of their drivers' licenses that they are entitled to a hearing shows defen ants bad faith, 

which is a denial of fundamental fairness as the Courts are not a mechanism to dep 've an unwary 

defendant of the their federal protected rights to have an hearing on the ability top y prior to 

having their drivers licenses suspended. 

46. Defendants herein were put on notice in March 14, 2016 that their proce ures in 

automatic suspension of defendants' drivers in traffic court without providing a he · ng on the 

ability to pay violated clearly established United States Supreme Court Law and De endants' 

response was we do not care and defendants just continue these serious violatio s of the 

United States Constitutional protection, nor is this an isolated case as defendan s conduct 

herein has effective some 5 million drivers licenses California have been suspe ded illegally 

and California just continues in its untoward ways giving no notice to said defe dants to get 

their licenses reinstated. 

47. Requiring the filing of this complaint for Preliminary Injunction an TRO as 

Defendants have no intentions of complying with the U S Justice Department C vii Rights 

Division's "Dear Colleague" letter and defendants only reason that plaintiffs d ivers 

license has been suspended is for nonpayment of exorbitant penalty assessment in the 

amount of $1,465.00, which is not predicated on a suspension for public safety. 

48. Petitioner lives in a rural area far from public transportation and ne d the 

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reinstatement of drives' license so that petitioner can doing grocery shopping, btain 

medical treatment for petitioner's medical conditions which are required as c rrently 

2 petitioner has two medical procedures scheduled in which petitioner will be un ble to 

3 attend if this TRO is not granted, which would be prejudicial to petitioner hea h. 

4 49. Plaintiff is suffering irreparable injury and is unable to function in t e normal 

5 day to day activities from everything from going grocery shopping getting med cal 

6 treatment and obtain medical procedures effecting plaintiff on a daily basis. 

7 50. Defendants conduct in refusing to provide for an ability to pay heari g is beyond 

8 the pale as clearly established law of the United States Supreme Court and as s ated in the 

9 Dear Colleague letter by the United States Justice Dept. Civil Rights Division. 

I 0 This Emergency Motion is supported by the Current filed "Dear Colleague L tter of the 

II United States Justice Department "Dear Colleague" letter to the California Judicial ouncil 

12 pointing out California Illegal acts of suspending California driver's licenses withou ever holding 

13 a hearing on the ability to pay. Nor is this an isolated incident as California has susp nded over 5 

14 million driver's license in its scheme of license- for- payment, which has amassed o er IO billion 

15 dollars in court debt. 

16 Plaintiff is suffering irreparable injury as plaintiff is unable to obtain medical treatment as 

17 plaintiff is not allow to drive legally to treat plaintiffs medical conditions, is unable o drive to do 

I8 the normal day to day shopping for groceries based solely on defendants illegal cond ct of refusal 

I9 to provide an ability hearing as plaintiff is and has been on Med-Cal which would re uire a 

20 reduction of 80% of the exorbitant penalty assessments/fines and fees whose sole p ose is to 

2I fund the California Court System. 

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WHEREFORE, plaintiff prays that the defendants and all persons action on it behalf 

shall reinstate plaintiff drivers license forthwith pending entry by this Court of a final preliminary 

injunction/ permanent injunction prohibiting these illegal and unconstitutional acts of all 

defendants. 

Dated 

Howard Herships 

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VERIFICATION 

I declare as follows: I 

I am the plaintiff in the above entitled case and I have read the above Appli tion for Ex 

Parte TRO and I know its contents based upon first hand personal knowledge and t ey are true 

and correct. 

I declare under penalty of perjury that all of the above is true and correct un er the Laws 

of the State of California. 

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Dated 

San 

Jan. 

Francisco, 

30, 2017 

Ca ~ 

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Howard Hership 

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