Richard Holcomb – C-VILLE Weekly

Suspended licenses: Lawsuit back in federal court

It’s not just bad driving that has caused nearly 1 million Virginians’ licenses to be suspended. Failure to pay court costs—often unrelated to being behind the wheel at all—has put indigent citizens in a downward spiral of debt, unemployment, and incarceration, according to a civil suit filed by the Legal Aid Justice Center two years ago.

In a February 2017 hearing in U.S. District Court for Stinnie v. Holcomb, lawyers from the state attorney general’s office representing defendant Richard Holcomb, commissioner of the DMV, argued that Holcomb was not the appropriate defendant and the federal district court in Charlottesville was not the right jurisdiction to hear the case. Judge Norman Moon agreed and dismissed the case.

In May, the 4th U.S. Circuit Court of Appeals remanded the case back to district court to allow the plaintiffs to amend their suit, which they did September 11.

“We spent a lot of time on what the DMV commissioner does,” says Angela Ciolfi, Legal Aid’s director of litigation and advocacy. License suspension “cannot be accomplished without the DMV, which gets revenue to reinstate licenses.”

The amended complaint adds four new plaintiffs from across the state. “They’ve all been treated exactly the same by the DMV,” says Ciolfi.

Two of the plaintiffs are from Charlottesville. Adrianne Johnson, 34, was working as a certified nursing assistant making $8.86 an hour in 2013 when she was convicted of a drug-related charge. She did not get jail time, but she was ordered to pay $865 in court costs, much of that for her court-appointed lawyer.

“So many people who live paycheck to paycheck don’t have a dime to spare,” says Ciolfi.

Although Johnson was on a payment plan, she couldn’t afford to make regular payments and her license was suspended, according to the suit. She continued to work—and to drive to get to her job, take care of her family, and take her daughter to medical appointments. In November 2017, she was convicted of driving on a suspended license.

The court put her on a payment plan requiring her debt be paid in six months, which the minimum wage earner could not afford, and when she missed a payment, her license was again suspended in May 2018, according to the complaint.

Johnson stopped driving after the November conviction, lives with her two children in a crowded apartment with another family—and struggles to pay rent and buy groceries, much less pay the roughly $900 she owes in court costs and the $150 it would take to reinstate her license.

“It’s not just about the people whose licenses have been suspended,” says Ciolfi, “but it’s about their families who can’t move forward.”

And in the two years the case has been pending, “we know of hundreds of thousands more suspensions and convictions of driving while suspended,” says Ciolfi.

She points out that states like California have repealed laws requiring license suspension for unpaid court debt, and in Mississippi, the state official in charge of suspensions has stopped enforcing the statute.

“These statutes are not holding up to constitutional scrutiny in other states,” she says.

The suspensions fall disproportionately on “low-income persons and communities of color,” alleges the complaint. African Americans make up 20 percent of Virginia’s population, but receive nearly half the orders of suspension for unpaid court debt and almost 60 percent of convictions for driving with licenses suspended because of court debt, according to the suit.

Ciolfi would like the General Assembly to repeal debt-driven suspensions, and says the Senate passed a bill to do so earlier this year, but it died in the House of Delegates.

In the meantime, she’ll ask the court for a preliminary injunction to stop the suspensions and a certification for a class action against the state law she says is unconstitutional.

‘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.