Bill Arnold, with four of his six children, is among a tiny minority of residents fighting for the right to travel by car in Tennessee. He is getting partial support from a U.S. district judge who recognizes the pervasive need in Tennessee to travel by car as she exposes the state’s abusive driver license revocation scheme. Mr. Arnold, however, is not part of that case. (Photo Bill & Stacy Arnold)

Aleta Trauger, U.S. district court judge

From July 1, 2012, to June 1, 2016, the Tennessee Department of Safety and Homeland Security revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes.  Over the same period, only 10,750 people whose licenses were revoked for non-payment of fines, costs, or litigation taxes had their licenses reinstated.

The driver license scheme is perhaps the most significant area of Tennessee’s deep state abuse of the poor, the immigrant, the minority and the orphan and widow. It pretends that there is no right of free travel on the roads, and that all use of the road by car truck or motorbike is absorbed into the state’s jurisdiction through the driver license statute at Tenn. Code Ann. title 55.

By David Tulis / 92.7 NoogaRadio

But things are changing in Tennessee,  thanks partly to a class action lawsuit in the names of two poor men, James Thomas and David Hixson In Nashville in U.S. district court.

An interview with plaintiff James Thomas, formerly a homeless man, here. https://www.tennessean.com/story/news/2017/01/05/lawsuit-tennessee-drivers-license-law-punishes-poor/96204462/

Federal judge Aleta Trauger is in process of overturning Tennessee’s unconstitutional practice of imposing civil death sentences on people too impoverished to pay court fines. Her 79-page memorandum explores in exhaustive detail the state’s defense of its debtors prison and its slight treatment of thousands of people in the Chattanooga area.

Premal Dharia, director of litigation for Civil Rights Corps, a non-profit organization representing the plaintiffs alongside Just City, National Center for Law and Economic Justice and the law firm Baker Donelson, called the court’s opinion “an important acknowledgement of the daily reality that thousands of Tennesseans face.”

“When a person is deprived of her driver’s license simply because she is too poor to pay court debt, she can’t drive her kids to school, can’t drive to the doctor, and can’t drive to work, making it even harder to earn money to pay that debt. The law we have challenged is illogical, unjust and entrenches people in a cycle of poverty that is nearly impossible to escape. This ruling is a meaningful step toward justice for people across the state of Tennessee,” Mrs. Dharia said in a statement.

Judge Trauger, however, shares an important mistake brought to her by the attorneys for the plaintiffs. And that is she presumes that no distinction exists between transportation and travel. She presumes that all travel by car or truck must be a form of transportation, subject to state licensure. Her discussion about the absolute necessity of “driving” is really a strong defense of private use of the roads, private travel by car, for personal necessity and pleasure and civic duty among individual Tennesseans. So while she uses “driving” and “operating” throughout, she is really referring to travel by automobile, that activity described as protected by transportation administrative notice about the state of the law in Tennessee.

‘Substantial economic disadvantages’ of not driving

Premal Dharia, attorney

A far different calculus prevails, however, when the privilege lost is the ability to operate a car on the state’s roadways. Unlike the power to vote, the ability to drive is crucial to the debtor’s ability to actually establish the economic self-sufficiency that is necessary to be able to pay the relevant debt. It does not require reams of expert testimony to understand that an individual who cannot drive is at an extraordinary disadvantage in both earning and maintaining material resources. “[D]riving an automobile” is “a virtual necessity for most Americans.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Thomas and Hixson have previewed substantial evidence to that effect, much of which [Tennessee safety commissioner David] Purkey has objected to on evidentiary, rather than factual, grounds.

Even solely on the basis of the undisputed facts and the basic features of life of which the court can take judicial notice, however, the substantial economic disadvantages associated with being unable lawfully to drive are apparent. (footnote: 9 Again, Tennessee is not New York City or Chicago, where public transportation is so ubiquitous that many people do not own cars and some never even learn to drive.)

Most obviously, being unable to drive in Tennessee limits the jobs available to a person and makes holding a job difficult once the person has it. “Automobile travel . . . is a basic, pervasive, and often necessary mode of transportation to and from one’s home [and] workplace.” Delaware v. Prouse, 440 U.S. 648, 662 (1979). Some jobs require a person to drive as part of his duties, and even those jobs that do not themselves involve driving generally require the employee to be somewhere, reliably, on time.

Public transportation inadequate

The damage that the lack of a driver’s license does to one’s employment prospects is just the beginning. Being unable to drive is the equivalent of a recurring tax or penalty on engaging in the wholly lawful ordinary activities of life—a tax or penalty that someone who was convicted of the same offense, but was able to pay his initial court debt, would never be obligated to pay. When the State of Tennessee takes away a person’s right to drive, that person does not, suddenly and conveniently, stop having to go to medical appointments, stop having to report to court dates, or stop having to venture into the world to obtain food and necessities.

Maybe public transportation will work for some of those activities some of the time, and maybe it will not. Purkey has offered nothing that would permit the court to conclude that public transportation can adequately fill the void left by the loss of a license, and indeed he stipulates, at a minimum, that “[p]ublic transportation is not available in some parts of Tennessee.”(Docket No. 40 ¶ 42.) Similarly, while some individuals with revoked licenses may be able to rely on family or charitable assistance for some purposes, there is no reason to conclude that such options will be available or adequate in most cases. What, then, is a person on a revoked license to do? The lawful options are simple: he can simply forgo the life activities, no matter how important, for which he cannot obtain adequate transportation, or he can incur additional transportation expenses—making himself that much less likely ever to satisfy his court debt.

Might people ‘drive’ on revoked? No

Of course, an indigent person with a revoked license has another option, besides accepting the practical limitations that the state has placed on him: he can, faced with the need to navigate the world and no feasible, affordable, and legal option for doing so, break the law and drive. The court very deliberately uses “can” here, not “may” or “should,” but it would simply be willful blindness to ignore the fact that some debtors with revoked licenses will be tempted to disregard the revocation, at least for pressing needs.

By defying his license revocation, however, the indigent debtor puts himself at the risk of incurring more fines, more court costs, and more litigation taxes that will be likely to render the restoration of his rights an even more improbable proposition. See Tenn. Code Ann. §§ 40-35-111(e), 55-50-504(a) (criminalizing and imposing fines on driving on a revoked license). If the purpose of such a scheme were simply to lock indigent defendants into an endless cycle of greater and greater debt, it could be said to serve that purpose well. But Purkey, to his credit, does not assert that the State of Tennessee or his Department has any legitimate interest in building inescapable debt traps for indigent Tennesseans. Purkey, rather, claims that his Department’s policies are in furtherance of debt collection. Toward that end, it is hard to say the policies are rationally calculated.

Transportation Administrative Notice as PDF, 20pp

*** Section 40-24-105(b), on the other hand, imposes a wholly new sanction and is exclusively targeted at defendants who have failed to pay their court debt for an entire year—that is to say, a group particularly likely to consist, in substantial part, of defendants who, like Thomas and Hixson, have suffered from a longstanding, persistent inability to pay. And the undisputed facts suggest that that longstanding, persistent inability usually continues after revocation. Purkey admits that, from July 1, 2012, to June 1, 2016, his agency revoked over 146,000 driver’s licenses for failure to pay fines, costs and/or litigation taxes. It restored fewer than 11,000. (Docket No. 64 ¶¶ 107–08.) In other words, well over 92% of the people whose driver’s licenses were revoked turned out not, in fact, to be people who could be coerced into payment. Can it really be said, then, that section 40-24-105(b) is a collection mechanism that, through its overbreadth, sweeps in some indigent people? The numbers would suggest that, to the contrary, taking away the driver’s licenses of indigent people is the core of what the statute does.

Judicial notice on necessity of cars, trucks

*** By the same principle, a court is permitted to take judicial notice of commonly known and indisputable facts about a city or region’s transportation infrastructure. See, e.g., Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1370 (11th Cir. 1998) (taking judicial notice that “Atlanta is home to Hartsfield Atlanta International Airport, one of the busiest airports in the country”). Indeed, as Thomas and Hixson point out, courts have, where appropriate, specifically taken judicial notice of the necessity of motor vehicle travel for certain work or life activities. See Southerland v. St. Croix Taxicab Ass’n, 315 F.2d 364, 367 (3d Cir. 1963) (“The District Court was entitled to take judicial notice of the fact, as do we, that the Alexander Hamilton Airport is located in a rural part of St. Croix, some miles from the hotels and towns of the island and that it is served by no regular public transportation facilities.”); United States v. Lopez, No. 05-CR-593, 2007 U.S. Dist. LEXIS 26170, at *13 n.14 (E.D. Pa. Mar. 26, 2007) (“The Court takes judicial notice that the motel in question is in King of Prussia, Pennsylvania, approximately 20 miles outside of Philadelphia, in an area that is not readily served by public transportation and is otherwise generally inaccessible without a car.”); cf. Susman v. N. Star Tr. Co., 30 N.E.3d 622, 628 (Ill. App. Ct. 2015) (“This court, which is located in Chicago, Cook County, may take judicial notice of the fact that Lake County is adjacent to Cook County and that many people commute every day from Lake County to work in Chicago.”).

‘Basic, pervasive, necessary’ for Chattanoogans

Of particular relevance to this case, the Supreme Court itself appears to have had little hesitation in observing that “[a]utomobile travel . . . is a basic, pervasive, and often necessary mode of transportation,” Prouse, 440 U.S. at 662, or in referring to driving as “a virtual necessity for most Americans.” Wooley, 430 U.S. at 715.

*** [I]n their Statement of Undisputed Material Facts, Thomas and Hixson, citing third-party research, posit that, “[i]n Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation.” (Docket No. 64 ¶ 95.) Purkey, in response, objects on the basis of hearsay but does not deny the fact asserted. (Id.) Thomas and Hixson add that, “[i]n Nashville, Knoxville, and Chattanooga, more than two thirds of working-age residents lack access to public transportation.” (Id. ¶ 96.) Again, Purkey raises only a hearsay objection, with neither a denial of the plaintiffs’ factual assertion nor any proffered reason to doubt its general accuracy. (Id.) Thomas and Hixson then claim that “93.4% of Tennessee residents drive to work.” (Id. ¶ 97.) This time, Purkey raises two evidentiary objections—but again, he makes no quarrel with the facts. (Id.) This pattern continues for several pages, with Purkey objecting even to such undeniably common sense statements as “Many indigent people who owe Court Debt and whose licenses have been revoked under the Statute still need to drive in order to get to work, school, or medical appointments.” (Id. ¶ 106; see id. ¶¶ 94–106.) Any factual basis for Purkey’s resistance to the plaintiffs’ positions, however, is conspicuously absent.

*** This court previously suggested that taking a person’s driver’s license away to try to make him more likely to pay a fine is more like using a shotgun to treat a broken arm. Maybe it is more like using the shotgun to shoot oneself in the foot. However one wants to think about it, the aspect of the Sixth Circuit’s metaphor that is easy to miss is that, while the state is not required to use the best tool for the job, it still has to use a tool for the job. There is substantial reason to doubt that applying section 40-24-105(b) to indigent debtors makes any sense at all as a tool for collecting court debt.

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