Margaret O’Shea – C-VILLE Weekly

‘Modern-day debtors’ prison’: Injunction sought to stop practice of suspending driver’s licenses for unpaid fines

It’s a tough argument to make: That a woman with three children who makes around $9 an hour, who can’t buy enough groceries to meet minimum nutritional needs, and who shares a bedroom with two kids in an apartment with another family, has plenty of money left over to pay $100 a month to get her suspended driver’s license back.

Yet that was the case the Commonwealth of Virginia made at a November 15 hearing. The state suggested that if the woman gave up her cellphone, she’d have the $100 a month and that losing access to communication would in no way would cause her “irreparable harm.”

The case is Stinnie v. Holcomb, and it was filed in 2016 by the Legal Aid Justice Center, which claims the state’s automatic suspension of driver’s licenses for nonpayment of court fines and fees that often have nothing to do with actual driving infractions, is unconstitutional because it happens with no notice of the suspension, no consideration of the person’s ability to pay, and falls disproportionately upon the poor.

At a four-and-a-half-hour hearing in U.S. District Court, plaintiffs’ attorneys asked Judge Norman Moon for a preliminary injunction to immediately stop the automatic suspensions.

Moon has seen this case before. In early 2017, he heard the state’s motion to dismiss, which argued that Richard Holcomb, the DMV commissioner, was not the proper defendant and federal court not the proper venue. Moon agreed and dismissed the case, but a federal appeals court sent it back to him.

This time, Moon asked a lot more questions about how indigent people were supposed to pay staggering court costs—and then the additional $145 the DMV charges to reinstate a license. At times he called a driver’s license a “property right,” veering from the state’s assertion that a license is a privilege.

“We’re seeking an order declaring the statute unconstitutional,” said Legal Aid Justice Center attorney Angela Ciolfi. That’s a possibility Moon had considered last year in his decision dismissing the case, because people get no notice or hearing about the license suspension—in effect no due process.

Adrianne Johnson, 34, is one of the plaintiffs. The native Charlottesvillian has three children and worked as a certified nursing assistant until she was convicted of a drug charge in Brunswick County. She didn’t get jail time, but had court costs of $865. She was paying $100 a month until she lost her job. Unaware that her license had been suspended for the unpaid fines, she was then charged with driving with a suspended license. After a second suspension, she stopped driving because a third conviction carries jail time.

Not having a license has affected her job opportunities, she testified. Though she managed to find another job, the lack of a driver’s license is preventing her from being promoted to manager, she said, because that position requires driving to make daily bank deposits.

“It’s very stressful, very inconvenient to me and my children,” she said. Her daughter has medical issues and her son plays sports. “I can’t take him or go to any of his games.”

With a license, she said, “I would be able to have a better paying job. I could pay the court costs and fines.”

Assistant Attorney General Margaret O’Shea asked Johnson if she’d gone to the Brunswick court to ask for community service.

“No, I didn’t know about that,” said Johnson. “And how am I going to get to Brunswick? I don’t have a license.”

O’Shea suggested that with Johnson’s $200/month rent for a room she shares with two of her children, she should have plenty of money left over to pay her fines.

“I have nothing left over after I pay my expenses,” said Johnson. “It just leaves me with nothing. Nothing at all.”

The plaintiffs called Diana Pearce, a University of Washington professor who created the self-sufficiency standard, which determines that amount of income needed to meet basic needs.

Pearce looked at Johnson’s income and expenses, and said, “She’s not able to meet her basic needs based on her income.”

O’Shea asked if the numbers meant Johnson had $400 a month left over, and that with the $200 rent, “she had a roof over her head.”

The money is not extra income, maintained Pearce. Johnson is “not spending enough on housing and nutritional needs,” and sharing a room with two kids was not meeting basic needs, she added.

Steven Peterson is a microeconomist who testified that the loss of a driver’s license for unpaid fines “disproportionately affected poor people,” with 40 to 45 percent losing their jobs. If they found another job, he said, 88 percent had lower incomes.

Using numbers from the DMV, he said in 2017, 977,891 people had their licenses suspended, and 647,517 of those were suspended only as a result of not paying fines and court costs.

McGuireWoods attorney Jonathan Blank asked the judge to declare the suspensions unconstitutional. “You cannot punish a person who lacks the resources to pay a debt,” he said. “We’re here because this is a modern-day debtors prison.”

Moon seemed skeptical of the commonwealth’s arguments that the costs on indigent people caused no “irreparable harm,” and said, “They shouldn’t be punished if they cannot pay.”

But with an eye toward the weather, Moon recessed the court without ruling and said he had to get to Lynchburg.

“I feel very heartened by the judge’s questions,” said Ciolfi. “He clearly gets the unfairness” and the “devastation” to people’s lives.

‘Constitutional crisis:’ Judge hears DMV’s motion to dismiss

Not in attendance at a civil case hearing February 2 in U.S. District Court were the four plaintiffs who are suing Virginia’s Department of Motor Vehicles. One reason for their absences, according to their attorney, is because their driver’s licenses are suspended.

The case, filed by Legal Aid Justice Center against DMV Commissioner Richard Holcomb, contends that Virginia’s suspension of licenses for nonpayment of fines and court costs, including for convictions that have nothing to do with driving, is unconstitutional because it doesn’t take into account the driver’s ability to pay, gives no notice of the suspension, and it denies due process and equal protection to the poor.

The DMV, represented by Assistant Attorney General Margaret O’Shea, offered a list of reasons why the case should be thrown out: That Holcomb has sovereign immunity. That the state statute offered the option of community service. That the suit was filed in the wrong court, and that people receive notice by the “mere existence of the statute” and are told at the time of their conviction their license will be suspended if they don’t pay fines within 30 days.

“We’re talking driver’s licenses—not someone being locked up,” said O’Shea.

She suggested that the court should give the state of Virginia time to remedy the problem, and said the lack of indigent payment plans has “all been fixed” by the Supreme Court of Virginia’s Rule 1:24 last November, which went into effect February 1.

Plaintiffs’ attorney Jonathan Blank with McGuire Woods wasn’t buying it. He noted that 914,000 Virginia license holders—one out of six state drivers—had their licenses suspended with no hearing.

UVA law professor Leslie Kendrick, another plaintiff’s attorney, called the suspensions of nearly a million licenses “a constitutional crisis.” A driver’s license is a constitutional right and being poor is not a good reason for taking it away, she argued. “Crimes didn’t lead” to the suspensions, she said. “Debt is the cause.”

Angela Ciolfi with Legal Aid Justice Center doesn’t think Rule 1:24 is a panacea to the problem. It would not help people who never had payment plans like plaintiff Damian Stinnie, a Charlottesville resident who owes four courts a total of $1,500.

To get his license reinstated, he could be required to pay 20 percent to each court, a total of $300, and that doesn’t include the DMV reinstatement fees, which could bring the total to $475, an impossible sum for someone who’s indigent, said Ciolfi.

And if he misses a single payment to a single court, his license could be suspended again, she said.

Counting on General Assembly consideration to fix the law, she said, “is still a hope and a prayer,” with the 1,000 bills it typically has to consider.

Ciolfi asked Judge Norman Moon to declare the state law unconstitutional and to enjoin the state from suspending licenses until the matter is remedied.

Moon sounded like he’d rather do anything else, and he asked the plaintiffs’ attorneys if there wasn’t a way to handle this “without going to a low-level federal court.”

O’Shea sounded the same theme. “I understand the appeal of a splashy federal court ruling,” she said. “This is not the right vehicle for their claim.”

However, there’s already been some weighing in on the federal level. The U.S. Department of Justice filed a brief in support of the plaintiffs in November, and called Virginia’s process unconstitutional.

Blank asked the court to deny the motion to dismiss and give the plaintiffs the opportunity to argue the case. “I haven’t been in a case with this many people with this much at stake,” he said.

Added Kendrick, “If everything the defendant says is true, we wouldn’t have 914,000 Virginians with their licenses suspended.”

Fact check

Lawyers representing the commonwealth say people who can’t afford to pay traffic fines already have the option of getting a payment plan or community service. C-VILLE checked with the local general district courts.

In Charlottesville, Clerk Mary Trimble said both were available “if somebody comes in and asks.” She also said a down payment is required for a payment plan.

A clerk in Albemarle General District Court, after checking with Judge William Barkley, referred a reporter to the court’s page on the Virginia Judicial website.

“Payments must be received within 30 days following your court date to prevent the suspension of your operator’s/driver’s license for failure to pay,” it says, followed by the cryptic, “Payments made in accordance with ‘time to pay’ or deferred payment agreements are due on the agreed upon date.”

The page does not mention community service.