the Due Process Clause of the United States Constitution.

To determine whether the Due Process Clause has been violated, we first ask whether the
plaintiff has been deprived of a liberty or property interest. Cooper v. Salazar, 196 F.3d 809, 813
(7th Cir. 1999) (citing Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 387 (7th
Cir. 1984) and quoting Boucher v. School Board of Greenfield, 134 F.3d 821, 824 (7th Cir.
1998)). Smith clearly was; it is well established that the suspension of a driver’s license
constitutes a deprivation of a property interest. See, e.g., Illinois v. Batchelder, 463 U.S. 1112,
1116 (1983) (suspension of a driver’s license for statutorily defined cause implicates a protectible
property interest); Mackey v. Montrym, 443 U.S. 1, 10 & n.7 (1979) (the Due Process Clause
applies to a state’s suspension or revocation of a driver’s license).

We next ask “what process is due” to protect against an erroneous deprivation of that
interest. Cooper, 196 F.3d at 813 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972));
Mackey, 443 U.S. at 10. In answering this question we consider a number of factors: (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 probable 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. Mackey, 443 U.S. at 10 (quoting Mathews y. Eldridge, 424 U.S. 319,
335 (1976)). As to the first factor, a driver’s interest in continued possession and use of his
license pending the outcome of a suspension hearing is substantial, Mackey, 443 U.S. at 11, and
this would seem to be especially true where, as here, the grounds for suspension arise from acts

committed not by the lawful license holder but by an identity thief. As to the second factor,


demonstrate irreparable injury, a plaintiff must show that he will suffer harm that cannot be
prevented or fully rectified by the final judgment after trial) (citing Roland, 749 F.2d at 386), and
Smith’s failure to show a risk of irreparable harm requires the Court to deny his request for
injunctive relief. See Signode Corp. v. Weld-Loc Systems, Inc., 700 F.2d 1108, 1111 (7th Cir.
1983) (citing Fox Valley Harvestore v. A.O. Smith Harvestore Products, Inc., 545 F.2d 1096,
1097 (7th Cir. 1976)) (a preliminary injunction is an extraordinary remedy, available only to
plaintiffs who carry the burden of persuasion as to all factors).

To support his motion to amend the relief requested, Smith submitted an FBI arrest
record generated in a criminal case in Indiana pending against the identity thief. Smith asks the
Court to compel the Illinois Secretary of State to tell the FBI and NCIC that Smith was the victim
of an identity theft. There are two problems with this request. First, to the extent Smith now has
an inaccurate FBI identification record, this lawsuit against the Secretary of State is not the way
to fix that record. Congress has enacted regulations governing challenges to the FBI’s records,
including the NCIC, and those regulations place the burden on Smith to challenge the fake arrest
record either in Indiana, which created the arrest record in the first place, or through the FBI
directly. See 29 C.F.R. §16.34. Smith has an effective means of rectifying the false information,
and the Secretary of State’s failure to establish a separate procedure for cleaning up the FBI’s
records does not amount to a due process violation. Second, the future harm Smith is seeking to
remedy with his amended relief requested is not an injury that flows from the procedures Smith
has challenged in this lawsuit. The property interest Smith has sought to protect here is his
interest in maintaining his driver’s license; as the Court understands his claim, he challenges the

erroneous deprivation of that interest through the suspension procedures implemented by the


Requested in Preliminary Injunction, p. 2.

The purpose of a preliminary injunction is to minimize the hardship to the parties
pending resolution of their lawsuit. Kiel v. City of Kenosha, 236 F.3d 814, 816 n.4 (7th
Cir.2000). To obtain a preliminary injunction Smith must demonstrate that: (1) he has a
reasonable likelihood of success on the merits of his underlying claim; (2) no adequate remedy at
law exists; and (3) he will suffer irreparable harm if the preliminary injunction is denied. See Ty,
Ine. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). If Smith satisfies these three
conditions, the Court must then consider whether the irreparable harm Smith will suffer without
injunctive relief is greater than the harm the Secretary of State will suffer if the preliminary
injunction is granted. Jd. In addition, the Court must consider whether the preliminary
injunction will harm the public interest. Jd.

The threshold factor is likelihood of success on the merits, see Rust Environment &
Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1213 (7th Cir. 1997) (citing O’Connor v. Board
of Education of School District No. 23, 645 F.2d 578, 580 (7th Cir.), cert. denied, 454 U.S. 1084
(1981)), so we begin there. A “likelihood of success” exists if the party seeking injunctive relief
shows that it has a “better than negligible” chance of winning on the merits. Meridian Mutual
Insurance Co. v. Meridian Insurance Group, Inc., 128 F.3d 1111, 1114-15 (7th Cir. 1997);
International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th Cir.
1988). Smith claims that the Secretary of State failed to “establish[] a quick, speed, and efficient
system for victims of identity theft” and that that failure “has caused and is likely to cause in the
future continued deprivation of the property right to operate a motor vehicle.” Amended

Complaint, 4118. In short, he claims, the Secretary of State’s procedures (or lack thereof) violate


Illinois’ post-suspension hearing procedure has been declared constitutional by both the Supreme
Court and the Seventh Circuit, see Dixon v. Love, 431 U.S. 105 (1977); Burgess v. Ryan, 996
F.2d 180, 183 (7th Cir. 1993), despite the recognition of the very flaw in the system that has led
us here today: the risk that reports of the convictions upon which the suspension is based may be
erroneous. As noted in Burgess, the Dixon Court held that that risk was low — not zero, but low,
996 F.2d at 183, and apart from his own case Smith has not shown that the risk has materially
increased since Dixon.' Conversely, the cost of tinkering with the system to alleviate that low
risk is high: if we required Illinois to hold the hearing before suspending licenses, society could
potentially pay a high price for keeping dangerous drivers on the roads while the suspension
process crawls along. And if we required Illinois to conduct a pre-suspension examination and
investigation into every out-of-state conviction report, we would be undermining both full faith
and credit principles and the Interstate Driver License Compact. This last point goes to the third
factor as well.

Based on our analysis of the above factors, it is tempting to say, as the Secretary urges,
that Illinois provides, and Smith received, all the process that is due under the Constitution:
Illinois provides a remedy for Smith to challenge the erroneous suspension of his license, and
higher courts than this have held that remedy to be constitutional. But, as the procedural history
of this case shows, that process is of absolutely no use to someone like Smith, whose license was

wrongfully suspended because of tickets issued by states other than Illinois. As the Secretary of

‘Indeed, currently the risk of erroneous deprivations based on identity theft is likely lower
than when Smith’s identity was stolen, because the Secretary of State has implemented anti-fraud
measures such as the archiving of digitized photographs of license holders, a step which provides
a readily available database that can then be cross-checked to prevent an identity thief from
obtaining a fake license in the manner done here.

5


state. The fake arrest record and inaccurate NCIC entry certainly have not infringed that property
interest, and given the Secretary of State’s handling of this matter since Smith filed this lawsuit,
another erroneous suspension stemming from the identity theft is highly unlikely (the Secretary
already stopped one such erroneous suspension from taking effect).
Conclusion
For the reasons explained above, the Court denies Smith’s motion to amend relief
[Docket No. 25-1] and denies Smith’s application for a preliminary injunction [Docket No. 14-

1]. The case is set for a status hearing on February 14, 2002 at 9:30 a.m.

WAIN

MATTHEW F. KENNELLY /

Dated: January 28, 2002

United States District Judge


Minute Order For (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Matthew F, Kennelly

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 1605 DATE 1/28/2002
CASE Smith vs. IL Secretary of State
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(65) oOo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) dq Ruling/Hearing on set for at
6) oO Status hearing[held/continued to] [set for/te-set for] on set for at
(6) o Pretrial conference[held/continued to} [set for/re-set for] on set for at .
(@) Oo Trial[set for/re-set for] on at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
(9) ia) This case is dismissed with/without} prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CiGeneral Rule 21 CUFRCP41(a)(1) C1 FRCP41(a)(2).
do) «off (Other docket entry] For the reasons set forth on the attached memorandum opinion and order, the
Court denies Smith’s motion to amend relief (25-1) and denies Smith’s application for a preliminary
injunction (14-1). Status hearing set to 2/14/02 at 9:30 a.m.
al) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court. 2
No notices required. —<
Notices maited by judge’s staff.
JAN 30 2002
Notified counsel by telephone. date docketed
wv | Docketing to mail notices.
Mail AO 450 form. sn g
judge/magistrate judge. ULsta
Copy to judge/magistrate judge. 1und ae i ia

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initials

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State concedes, its hearing officers cannot overrule or question a court judgment without hearing
from the court itself. See Defendant’s Post-Hearing Memorandum, p. 7. This, coupled with the
lack of any mechanism for investigating the out-of-state convictions, means that unless the
victim of identity theft has the money and the time to investigate the out-of-state convictions on
his own, he is almost sure to lose his Illinois license. We think that the scenario Smith presents
distinguishes his case from Dixon and Burgess to the point where he has shown a better than
negligible chance of succeeding on his claim. Accordingly, we find that Smith has survived the
first hurdle toward a preliminary injunction.

Smith is nonetheless not entitled to an injunction, because he has not shown that he will
suffer irreparable harm unless an injunction is issued. In fact, Smith has not shown that he will
suffer any further harm, at least with respect to his driver’s license. The fake license that got
Smith into all this trouble in the first place is no longer in the hands of the identity thief (the
identity thief surrendered it in connection with a ticket he got in Markham, Illinois, and the
officer investigating Smith’s identity theft claim retrieved it from the courthouse there), and the
out-of-state convictions that [ed to the suspension orders have all been cleared up. Thus the
record does not support Smith’s claim of irreparable harm, see Matta-Ballesteros ex rel. Stolar v.
Henman, 697 F. Supp. 1036, 1038 (S.D. Ill. 1988) (because a preliminary injunction is, by its
nature, an extraordinary remedy, a plaintiff must show more than mere speculation of irreparable

harm); Anderson yv, U.S.F. Logistics (IMC), Inc,, 274 F.3d 470, 478 (7th Cir. 2001) (to

>The Secretary of State has suggested that its fraud unit has the ability to investigate out-
of-court convictions once a driver’s license holder files a fraud complaint; it argues that Smith’s
is not the first case the fraud unit has resolved. But there appears to be no set policy or procedure
for getting the fraud unit to commit its resources to such an investigation ~ short of hiring an
attorney and filing a lawsuit as Smith did,


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JONATHAN SMITH, )
Plaintiff, }
v. ) Case No. 01 C 1605 DOCKED
ILLINOIS SECRETARY OF STATE, ‘ JAN 3.0 2082
Defendant. ‘

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Jonathan Smith was the victim of an identity theft. Another man somehow persuaded the
Secretary of State to issue a renewal license in Smith’s name, with Smith’s driver’s license
number, social security number and birthdate, but the identity thief’s picture and address. After
getting the bogus license, the identity thief racked up several out-of-state traffic violations and
failed to appear to remedy those violations, thereby creating numerous blemishes on Smith’s
driver’s license record. As a result of those blemishes, effective June 9, 2000, the Secretary of
State suspended Smith’s license.

On February 27, 2001, Smith attempted to renew his real driver’s license and was told
that he could not do so because his license had been suspended. He was told that the suspension
was based on out-of-state traffic violations and that to remedy the problem he would have to
work through the courts of the states in which the tickets had been issued. Smith requested a
hearing, consistent with the procedures established by the State of Illinois, to challenge his
suspension, and the hearing was scheduled for May 2, 2001. In the meantime, Smith filed this

lawsuit, alleging that the Secretary of State’s procedures violated his due process rights and

=


seeking an injunction requiring the office to establish procedures to help the victims of identity
theft. Smith’s lawsuit prompted an investigation of his plight, and Secretary of State personnel
worked with the various out-of-state courts to clear the tickets issued to the identity thief in
Smith’s name — actions the Secretary took, not as a matter of policy, but because of the pendency
of this lawsuit. Eventually the Secretary issued Smith a new license but refused to change
Smith’s driver’s license number. Ironically, shortly after Smith received his new license, the
hearing officer, who heard Smith’s case a few days before the license was issued, denied Smith’s
request to lift the suspension. The denial was based on a Tennessee ticket that had already been
vacated by the Tennessee court.

Smith initially filed this lawsuit seeking an injunction requiring the Secretary of State, the
agency charged with administering the state’s driver’s licensing system, “[tJo establish and
enforce procedures to guard against the issuance of bogus driver’s licenses, [t]o establish and
enforce a procedure to allow victims of identity theft to regain their right to operate a motor
vehicle in Illinois when that person’s driver’s license has been revoked, without fault of the
driver, because of identity theft, and grant whatsoever other relief as may be appropriate.”
Amended Complaint, p. 6. After learning that the actions of Smith’s identity thief had apparently
created an FBI arrest record in Smith’s name, which was subsequently reflected in the National
Crime Information Center database managed by the FBI, Smith moved to amend his request for
relief. Now, in addition to the above, he asks the Court to issue an injunction requiring the
Secretary of State “to advise law enforcement agencies, including the NCIC and the FBI, that an
Illinois driver’s license in plaintiff's name was used, without any fault or culpability on the part

of plaintiff, by an identity thief from January 9, 1998 to May 15, 2000.” Motion to Amend Relief