Winston-Salem judge re-examining license revocation for non-payment of fines

A federal judge in Winston-Salem will decide whether the NC Division of Motor Vehicles violates the Constitutional rights of poor people by taking away drivers licenses when people are unable to pay court costs.

A federal judge in Winston-Salem is considering a question that affects tens of thousands of North Carolinians each year: Does the state’s practice of revoking driver’s licenses for failure to pay traffic fines violate the equal protection and due process rights of poor people?

“In a state where a driver’s license is indispensable to mobility and economic self-sufficiency, this wealth-based license revocation scheme strips impoverished North Carolinians of their capacity to meet their basic needs and those of their families,” argues Johnson v. Jessup, a lawsuit filed against Torre Jessup, the commissioner of the NC Division of Motor Vehicles, or DMV. “As a result, hundreds of thousands of North Carolinians cannot legally use a car to secure and maintain employment, take their children to and from school, attend medical appointments or travel to buy groceries needed for daily life. The license revocation scheme forces the most economically vulnerable further into poverty, in violation of their right to due process and equal protection of the law under the US Constitution.”

Seti Johnson, a 27-year-old Mecklenburg County resident and father of three, is the lead plaintiff in the case.

Johnson has struggled to maintain work, the lawsuit contends, in part because his license had been revoked at least twice before due his inability to pay his traffic tickets, and because time in court attending multiple hearings kept him away from work.

On May 22, 2018, a Cabarrus County district court judge sentenced Johnson to $308 in fine and costs. Because he couldn’t afford to pay it all at once, the judge tacked on a $20 “installment plan setup fee.”

Since the mid-1980s, when the state law revoking driving privileges for nonpayment went into effect, about 264,000 have had their licenses suspended, according to the DMV. But the total number of revocations during that period is more than 426,000, suggesting that many drivers who manage to restore their driving privileges repeatedly find themselves caught in the vise of court debt.

An affidavit filed on March 12 by a business and technology analyst with the agency indicates that roughly a third of drivers who receive a Notice of Suspension pay their court fines and costs before their licenses are suspended, while another third temporarily lose their licenses but pay within 60 days of receiving notice, and still another third do not pay court fines and costs after losing their licenses. The agency reported that 55,336 drivers paid court fines and costs before their licenses were suspended from June 1, 2015 to May 31, 2018. During the same period, 67,809 drivers paid court fines after their licenses were revoked but within 60 days of receiving notice, while another, 62,788 drivers didn’t pay after losing their licenses.

When the suit was initially filed in May 2018, the complaint contended that Johnson would not be able to pay the fine and court costs.

“Although Mr. Johnson has secured a new job through a temp agency, he will need to use his initial paychecks to pay unpaid bills, such as an overdue mechanic bill, a phone bill, and approximately $2,000 in back rent,” the suit says. “Mr. Johnson’s children also have immediate needs like diapers, clothes and shoes.”

The district court judge’s order set in motion a July 24, 2018 deadline for Johnson to pay off the fine and court costs or face the loss of his license yet again, but the DMV has agreed to delay enforcement until the federal judge decides whether to grant Johnson and his fellow plaintiffs a preliminary injunction.

The three other plaintiffs include 31-year-old Sharee Smoot, a mother and call-center worker who also lives in Cabarrus County; Marie Bonhomme-Dicks, a Wake County single mother who sells her plasma to make ends meet; and Nichelle Yarborough, a Franklin County mother of four, including a 9-month-old baby with serious medical needs.

Lawyers from the Southern Poverty Law Center, an Alabama-based nonprofit, briefly presented the case to US District Court Judge Thomas Schroeder on March 13. The American Civil Liberties Union, ACLU of North Carolina and Southern Coalition for Social Justice are also working on behalf of the plaintiffs. Lawyers from the NC Department of Justice are representing the DMV. Judge Schroeder, who was appointed to the federal bench by President George W. Bush, limited the hearing to about an hour while assuring the parties that most of the information he needed was in their filings. 

“We’ll endeavor to reach a conclusion as soon as possible,” he promised.

Discussion between Judge Schroeder and lawyers for the two parties centered on a provision in the state law requiring that defendants be afforded an opportunity for a hearing. But as the lawsuit notes, the DMV notice does not provide “any information about how to obtain a hearing,” much less explain that “there are options to permit persons to keep their licenses if they cannot pay in full” or that “the person’s ability to pay will be a critical issue at the hearing.”

Several similar suits are being heard by other federal judges across the country. Plaintiffs in Oregon attempted to build on something known as the “fundamental fairness” doctrine, based on Supreme Court rulings in the Griffin and Bearden cases related to the treatment of indigent criminal defendants.

In Mendoza v. Garrett, the Oregon Department of Transportation argued “that the Griffin/Bearden cases have a more limited application than plaintiffs suggest, that poverty is not a protected class, and that the statutory scheme has a rational basis,” according to the published opinion. “Based on these arguments, defendants contend that plaintiffs fail to establish substantive due process or equal protection schemes.”

Judge Schroeder told lawyers from the Southern Poverty Law Center in Winston-Salem last week: “I’m skeptical of the Bearden analysis. I’m not the only one.”

Judge Marco A. Hernandez in Oregon ruled against the plaintiffs in December 2018, finding that as desperate as their plights might be, they did not raise constitutional claims, and the proper venue for the issue was the legislative and executive branches of government.

Closer to home and more recently, Chief Judge Frank Whitney in the Western District of North Carolina ruled against Antonio Mosley, a former federal prisoner, who sought relief from a $65 restoration fee and $50 service fee to recover his driver’s license. Representing himself, Mosley wrote that as a federal prisoner scheduled for release after a 7-year sentence, he was homeless and unemployed and would not be able to afford the fees to restore his license. Noting that he planned to enroll in truck-driving school, Mosley wrote that without a driver’s license he would “have to forgo the truck driving training school, and job placement and figure out a different way to get housing, [my] children to school, daycare and the doctor’s office, or [I] will have to illegally drive and risk violating his supervised release and going back to prison.”

Whitney, who was also appointed by President George W. Bush, dismissed the case on March 4, finding that having a driver’s license is not a fundamental right and “the North Carolina statues are rationally related to the legitimate interest in having court debts paid.”

Neil Dalton, a NC Justice Department lawyer who represented the DMV in federal court on March 13, also emphasized the argument that driving is a privilege.

“Mr. Johnson has reoffended for failure to pay his fees,” Dalton said. “A lot of these people may have decided I can’t afford to have a car; it doesn’t work for me.”

But Schroeder said he’s more interested in the question of whether North Carolina gives adequate notice to drivers that they have the right to a hearing before their licenses are revoked. In deciding the case, he said he’ll ask: “Does the state provide an opportunity to be heard?”