Motley v. Taylor

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

SHARON MOTLEY, )

)

Plaintiff, )

)

v. ) CASE NO. 2:19-CV-478-WKW

) [WO]

HAL TAYLOR, in his official )

capacity as Secretary of the Alabama )

Law Enforcement Agency, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

TABLE OF CONTENTS

I. INTRODUCTION — 3

II. JURISDICTION AND VENUE — 4

III. STANDARD OF REVIEW— 4

IV. BACKGROUND — 6

A. Alabama’s Driver’s License-Suspension Scheme — 6

1. Receiving a Traffic Ticket — 6

2. The State’s Changes to the Traffic Ticket System — 7

3. Courts’ Authority to Impose Fines and to Suspend Licenses — 8

a. Courts’ Authority to Impose Fines — 8

b. Courts’ Authority to Suspend Driver’s Licenses — 9

4. Implementing Court-Ordered Suspensions — 9

B. Plaintiff Sharon Motley — 11

C. The Claim — 11

V. DISCUSSION — 13

A. Distinguishing Plaintiff’s Legal Theories — 14

B. The Nature of a Bearden Claim — 18

C. Mootness — 22

D. Statute of Limitations — 27

E. Laches — 39

F. The Merits — 49

1. Equal Protection — 49

a. Heightened Scrutiny — 50

i. Jones Step 1 — 51

ii. Walker’s “Absolute Deprivation” Test

(Jones Step 1.5) — 59

b. Rational Basis Review — 62

2. Procedural Due Process — 69

a. Notice — 71

b. Opportunity to be Heard — 73

VI. CONCLUSION — 78

I. INTRODUCTION

Plaintiff Sharon Motley is one of an estimated twenty-three thousand

Alabamians whose licenses are suspended for failing to pay traffic tickets. She

regularly faces difficult choices about how she will secure and retain employment,

apply for housing, cash checks, and access medical care. Before the court are

Plaintiff’s motions for class certification (Doc. # 5) and for a preliminary injunction

(Doc. # 3), which seek to put herself and similarly situated Alabamians back in the

driver’s seat. Defendant’s motion to dismiss the complaint (Doc. # 14) seeks to

maintain the State’s policy choice to keep these drivers off the road until their debts

to the public fisc are paid. While the burdens Plaintiff bears are substantial, the

Constitution does not provide her relief. Therefore, Defendant’s motion to dismiss

is due to be granted, and Plaintiff’s motions are due to be denied as moot.

Plaintiff seeks a preliminary injunction (Doc. # 3) to prohibit Defendant Hal

Taylor, head of the Alabama Law Enforcement Agency (ALEA),1 from enforcing

an Alabama rule that authorizes state courts to suspend indigent individuals’ driver’s

licenses without finding that they willfully refused to pay. Plaintiff’s preliminary

injunction motion further seeks to require the State to reinstate licenses suspended

under this rule and to notify affected individuals. Finally, Plaintiff moves to certify

1 Because Plaintiff sues Mr. Taylor in his official capacity, the court will refer to Mr.

Taylor as “Defendant” or “the State.”

a class of similarly situated individuals. (Doc. # 5.) The State moved to dismiss

(Doc. # 14) on procedural and jurisdictional grounds, as well as on the merits. This

opinion addresses those motions.

II. JURISDICTION AND VENUE

Because this case involves a constitutional challenge to state actions, subject

matter jurisdiction is proper under 28 U.S.C. § 1331 (federal question). The parties

do not dispute personal jurisdiction or venue.

III. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the

sufficiency of the complaint against the legal standard set forth in Rule 8: ‘a short

and plain statement of the claim showing that the pleader is entitled to relief.’”

Wilborn v. Jones, 761 F. App’x 908, 910 (11th Cir. 2019) (per curiam) (quoting Fed.

R. Civ. P. 8(a)(2)). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. This standard “is not

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

[the] defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “For

purposes of Rule 12(b)(6) review, . . . a court generally may not look beyond the

pleadings.” United States ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th

Cir. 2015). This court has adhered to this rule, except that it has considered two

specifically identified facts that are properly the subject of judicial notice. See infra

pp. 28–30 & n.11, 55 n.15.

The State challenges the court’s subject matter jurisdiction by arguing that the

case has been mooted by a subsequent revision to the statewide traffic ticket. An

attack on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

may be either a facial attack or a factual attack. Lawrence v. Dunbar, 919 F.2d 1525,

1528–29 (11th Cir. 1990) (per curiam). A facial attack simply challenges the

sufficiency of the plaintiff’s jurisdictional allegations, which are taken as true. Id.

at 1529. Factual attacks challenge “the existence of subject matter jurisdiction in

fact, irrespective of the pleadings, and matters outside the pleadings, such as

testimony and affidavits, are considered.” Id. (quoting Menchaca v. Chrysler Credit

Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Defendant brings a factual attack on

jurisdiction that requires the court to look beyond the allegations of the complaint

and to the evidence presented by the parties. See MSPA Claims 1, LLC v. Tenet Fla.,

Inc., 918 F.3d 1312, 1319 (11th Cir. 2019). Thus, in deciding the mootness issue

raised by Defendant’s motion, the court has reviewed all the evidence presented by

the parties. Accordingly, the facts recounted and documents referenced in Parts

IV.A.1. and 2. are considered solely for the purposes of deciding the 12(b)(1)

motion.

IV. BACKGROUND

A. Alabama’s Driver’s License-Suspension Scheme

1. Receiving a Traffic Ticket

Alabama police officers are required by statute to use a uniform traffic ticket.

See Ala. Code § 12-12-53(a). That statute is implemented by Alabama Rule of

Judicial Administration 19(A), which the Alabama Supreme Court promulgates.

Rule 19(A) provides what each traffic ticket must contain and includes the standard

ticket form, called Form UTTC-1. Form UTTC-1 (Series N) was the standard traffic

ticket throughout the state when Ms. Motley received her ticket in 2013. (Doc. # 7-

20, at 2–3; Doc. # 1, ¶ 33, at 9.)2

The Series N ticket has a section entitled “NOTICE,” which gives

“INSTRUCTIONS TO THE DEFENDANT.” The notice states that the defendant

must appear in court on a given date unless he or she has already settled the case. It

states that if the defendant fails to appear, the Department of Public Safety will be

notified to suspend his or her license. (Doc. # 7-20, at 14.) Series N does not give

2 All citations to the record refer to the CM/ECF page numbers in the heading of each

document.

notice that defendants who fail to pay their fines are subject to license suspension.

(Doc. # 7-20, at 3, 14.)

2. The State’s Changes to the Traffic Ticket System

On January 26, 2018, the Standing Committee on the Alabama Rules of

Judicial Administration recommended that the Alabama Supreme Court amend Rule

19(A) and the UTTC-1 ticket to include language notifying individuals who received

traffic tickets that their licenses are subject to suspension for failure to pay fines or

to enter into court-approved payment plans. On May 9, 2018, the Alabama Supreme

Court entered an order amending Rule 19(A) to include the Standing Committee’s

proposed language. (Doc. # 7-20, at 3.)

On August 10, 2018, the Standing Committee recommended that the court

adopt an updated Form UTTC-1 that includes: (1) the new notice language already

approved by the court and (2) several corrective changes, such as replacing

references to the “Department of Public Safety” with the “Alabama Law

Enforcement Agency.” Form UTTC-1 (Series P) contains the additional notice

language approved by the court in the amendments to Rule 19(A). (Doc. # 7-20,

at 4.)

Form UTTC-1 (Series P) was approved by the Alabama Supreme Court on

November 30, 2018. (Doc. # 7-20, at 4.) Series P is now the operative uniform

traffic ticket in Alabama.

3. Courts’ Authority to Impose Fines and to Suspend Licenses

a. Courts’ Authority to Impose Fines

Alabama Rule of Criminal Procedure 26.11 (the “Rule”) governs fines and

restitution orders in state courts.3 Rule 26.11(b) provides that courts, in deciding

whether to impose a fine, “should consider” five factors, including “the financial

resources and obligations of the defendant and the burden that payment of a fine will

impose,” as well as the “ability of the defendant to pay a fine forthwith on an

installment basis or on other conditions to be fixed by the court.” Ala. R. Crim. P.

26.11(b)(2), (3) (emphasis added). If the defendant cannot pay the fine

“immediately after pronouncement of the sentence as preferred, the court may permit

payment . . . at some later date, or in specified installments.” Ala. R. Crim. P.

26.11(d).

If the defendant fails to pay a fine, the court “may inquire and cause an

investigation to be made into the defendant’s financial, employment, and family

standing, and the reasons for nonpayment of the fine,” including whether

nonpayment “was contumacious or due to indigency,” — that is, whether the

defendant willfully chose not to pay or was simply too poor. Ala. R. Crim. P.

26.11(g) (emphasis added). The words should and may, when read in their ordinary

3 “Rule 26.11 is taken from the ABA Standards for Criminal Justice, Sentencing

Alternatives and Procedures 18-2.7 (2d ed. 1986).” Ala. R. Crim. P. 26.11 committee comments.

sense, mean that courts are not required to consider the indigency of the defendant

in deciding whether to impose a fine or in determining why a fine has not been paid.4

b. Courts’ Authority to Suspend Driver’s Licenses

“If the court orders a defendant to pay a fine and/or restitution imposed as a

result of a traffic infraction, the court may suspend the defendant’s privilege to

operate a motor vehicle in this state upon a failure of the defendant to comply with

the order of the court” — that is, when the defendant fails to pay the fine. Ala. R.

Crim. P. 26.11(i)(3). And “[i]f the defendant’s privilege to operate a motor vehicle

has been suspended for failure to comply with such court order, the privilege may

remain suspended until the total amount of the fine and/or restitution imposed is

paid.” Id.; (see also Doc. # 1, ¶ 18 n.10, at 6 (“Although the Rule talks about ‘fine

and/or restitution imposed as a result of a traffic ticket,’ the majority of traffic tickets

in Alabama do not result in restitution. Even Defendant’s own policy statement

references only unpaid ‘fines and court costs.’” (citation omitted).)

4. Implementing Court-Ordered Suspensions

To effectuate a license suspension, the court sends a form, called a UTC-25,

to the Alabama Law Enforcement Agency (“ALEA”).5 (Doc. # 1, ¶ 26, at 7–8.)

4 The parties have not cited, and the court has not found, an Alabama case construing the

language in Rule 26.11(b) as mandatory.

5 ALEA includes the Department of Public Safety and the State Bureau of Investigations.

See Ala. Code § 41-27-1.

“Form UTC-25 authorizes judges to order the suspension of a driver’s license for

nonpayment after making a finding that a motorist was ordered to pay a fine, court

costs and/or restitution and failed to pay.” (Doc. # 1, ¶ 29, at 8 (citation and internal

quotation marks omitted).) ALEA then mails a notice to the defendant that his or

her license has been suspended. “The Suspension Notice states that the motorist’s

driver’s license will remain suspended for an ‘indefinite’ duration until he or she

pays ‘the outstanding fine and/or court costs,’ the court mails Form UTC-25 to

ALEA as proof of payment, and the motorist pays a $100 reinstatement fee.” (Doc.

# 1, ¶ 31, at 8–9 (citation omitted).) “The letter does not provide motorists with any

notice about the possibility of a hearing to contest the suspension because the

motorist is indigent and unable to pay.” (Doc. # 1, ¶ 31, at 9.)

Defendant Hal Taylor, as head of ALEA, is tasked with administering and

enforcing the laws governing motor vehicles in the state. See Ala. Code §§ 32-2-5,

41-27-2(a). “He establishes general policies and oversees the actions of the agency,

including those related to driver’s license suspensions.” (Doc. # 1, ¶ 24, at 7.)

ALEA’s written “policy documents state that ‘[i]t is the policy of the Director and

the Driver License Division [of ALEA] that any person’ who ‘fails to pay’ will have

their [sic] driver’s license ‘suspended until . . . the fines and court costs have been

paid.’” (Doc. # 1, ¶ 25, at 7 (citation and internal quotation marks omitted).)

B. Plaintiff Sharon Motley

Plaintiff Sharon Motley lives in Montgomery, Alabama. Her license is

currently suspended for failing to pay “a traffic ticket that she received in the

Montgomery County District Court in 2013.” (Doc. # 1, ¶ 33, at 9.)6 Ms. Motley

claims that she cannot afford to pay her ticket and that, for this reason only, her

driver’s license remains suspended. (Doc. # 1, ¶ 33, at 9.) This suspension has made

it difficult for Ms. Motley to secure and retain employment, apply for housing, cash

checks, and obtain medical care. (Doc. # 1, ¶¶ 35–36, at 9.)

C. The Claim

On July 3, 2019, Plaintiff filed this lawsuit, alleging that the State’s

suspension of her license violates the Fourteenth Amendment’s guarantees of due

process and equal protection. (Doc. # 1, at 13, 15.) Her brief in response to

Defendant’s motion to dismiss explains that her claim is founded on the doctrine of

Bearden v. Georgia, 461 U.S. 660 (1983), and its associated cases. Bearden held

that, before ordering imprisonment for failure to pay a fine, a sentencing court must

determine whether an indigent probationer willfully refused to pay and, if his

inability to pay was through no fault of his own, must consider alternative measures

of punishment. Id. at 672.

6 Oddly, Ms. Motley does not plead the date of the suspension.

“Due process and equal protection principles converge” to protect indigent

defendants from imprisonment solely because of their inability to pay fines. Id. at

665. The principle that the states must provide “equal justice for poor and rich, weak

and powerful alike,” Griffin v. Illinois, 351 U.S. 12, 16 (1956), “has not been

confined to cases in which imprisonment is at stake,” M.L.B. v. S.L.J., 519 U.S. 102,

111 (1996). Plaintiff seeks to extend Bearden to protect indigent persons from

having their driver’s licenses suspended without a finding that they willfully failed

to pay.

Plaintiff’s claim, brought on behalf of all similarly situated persons, is based

on the State’s suspension of their driver’s licenses under Rule 26.11(i)(3) “without

prior notice, the opportunity to be heard, and an express finding that the individual

is able to pay and willfully failed to do so.” (Doc. # 1, ¶ 56, at 14.) She alleges that

“[n]either the [Montgomery District C]ourt nor ALEA gave her notice that her

driver’s license could be suspended for nonpayment, that her ability to pay is a

critical issue in determining the appropriateness of suspension or conducted an

ability to pay hearing prior to the suspension.” (Doc. # 1, ¶ 34, at 9.) Plaintiff seeks

a declaration that “that Rule 26.11(i)(3) of the Alabama Rules of Criminal Procedure

violates the Equal [P]rotection and Due Process Clauses of the Fourteenth

Amendment by suspending a motorist’s driver’s license for nonpayment without

prior notice, the opportunity to be heard, and an express finding that the motorist is

able to pay and willfully failed to do so.” (Doc. # 1, at 15.) Plaintiff also seeks to:

(1) enjoin ALEA from suspending licenses under Rule 26.11(i)(3) for nonpayment,

(2) require ALEA to reinstate licenses that were suspended for nonpayment

(assuming there is no other reason for suspension) without charging a reinstatement

fee, and (3) require ALEA to provide notice to the drivers who are eligible to have

their licenses reinstated. (Doc. # 1, at 15.) This court dismissed a previous attempt

to bring this claim because the named plaintiffs (including Ms. Motley) lacked

standing to challenge their suspensions where their licenses were suspended for a

secondary reason that was not redressable by the court. See Cook v. Taylor, No.

2:18-cv-977-WKW, 2019 WL 1938794 (M.D. Ala. May 1, 2019).

V. DISCUSSION

In its motion to dismiss, Defendant argues that all of Plaintiff’s claims are

mooted by the implementation of the Series P traffic ticket, that the statute of

limitations has run on all claims, and that all claims are barred by laches.

Additionally, Defendant challenges the merits of Plaintiff’s claims under both equal

protection and procedural due process frameworks.

One issue can be disposed of at the threshold. Defendant originally argued

that the Rooker-Feldman doctrine barred Plaintiff’s claims. (Doc. # 16, at 18–21.)

Plaintiff clarified that she was only bringing facial claims to Rule 26.11(i)(3) and

not an as-applied challenge to her suspension order. (Doc. # 21, at 22–24.)

Defendant then conceded that these facial claims are not barred by Rooker-Feldman.

(Doc. # 22, at 8–10.) The court agrees, so this issue warrants no further discussion.

A. Distinguishing Plaintiff’s Legal Theories

While Plaintiff has pled a single claim for relief, that claim references five

distinct injuries that rely on legal theories of either equal protection or procedural

due process. Four of these injuries are intertwined with each other because they are

founded on the Griffin/Bearden line of cases, which allows Plaintiff to seek relief

through one hybrid equal protection/due process theory. The equal protection

component of this theory is a necessary condition for a Bearden claim. Plaintiff

adequately alleges such a component by claiming that “Alabama Rule of Criminal

Procedure 26.11(i)(3) violates Plaintiff’s rights under the Fourteenth Amendment to

the U.S. Constitution by authorizing courts to suspend any motorist’s driver’s license

for nonpayment of fines, restitution and/or court costs without . . . considering the

reason for nonpayment[] and without determining if the motorist willfully refused

to pay.” (Doc. # 1, ¶ 60, at 14.) Assuming this principle to govern, Plaintiff alleges

that Defendant’s enforcement of Rule 26.11(i)(3) violated her Fourteenth

Amendment procedural due process rights and injured her in three ways: 1) that

“[n]either the court nor ALEA gave her notice . . . that her ability to pay is a critical

issue in determining the appropriateness of suspension” 2) that “[n]either the court

nor ALEA . . . conducted an ability to pay hearing prior to the suspension,” and

3) that her license has been suspended without a finding that she had the ability to

pay.7 (Doc. # 1, at 9.) She argues that Rule 26.11(i)(3) is facially unconstitutional

because it authorizes suspensions without requiring the State to provide these

protections. Whether these procedural due process injuries can constitute grounds

for relief depends upon whether Plaintiff prevails on her equal protection argument,

because if the State was not required to consider Plaintiff’s reason for nonpayment,

then Plaintiff cannot be entitled to procedures that enable her to assert her indigence.

Therefore, these arguments constitute one blended Bearden claim because they

depend upon an allegation that the “State is treating the indigent and the non-indigent

categorically differently.” Walker v. City of Calhoun, 901 F.3d 1245, 1260 (11th

Cir. 2018).

Despite Plaintiff’s protest that “there is no separate procedural due process

claim,” (Doc. # 21, at 13), Plaintiff alleges that Defendant’s enforcement of Rule

26.11(i)(3) violated her procedural due process rights and injured her in in a manner

that is unrelated to her Bearden claim: “[n]either the court nor ALEA gave her notice

that her driver’s license could be suspended for nonpayment.” (Doc. # 1, ¶ 34, at 9.)

She argues that Rule 26.11(i)(3) is facially unconstitutional because it authorizes

suspensions without requiring the State to give individual notice of this possibility.

7 The third injury is stated in the subheading for Part IV.D. of the complaint. (Doc. # 1, at

9.) The court assumes, without deciding, that Plaintiff adequately alleged that she suffered this

injury.

This notice injury supports a pure procedural due process claim, not a Bearden claim,

because Plaintiff could obtain relief under this theory even if the Equal Protection

Clause does not require the State to consider Plaintiff’s reasons for nonpayment.

Plaintiff’s complaint and briefing repeatedly attempt to conflate her two notice

injuries by alleging that “Rule 26.11(i)(3) of the Alabama Rules of Criminal

Procedure violates the Equal [P]rotection and Due Process Clauses of the Fourteenth

Amendment by suspending a motorist’s driver’s license for nonpayment without

prior notice . . . .” (Doc. # 1, at 15; see also, e.g., Doc. # 1, at 1, 6, 10, 11, 14; Doc.

# 21, at 13, 24.) Even under Plaintiff’s broad definition of a Bearden claim, this

notice failure is not an “adverse consequence” imposed “against indigent defendants

solely because of their financial circumstances.” (Doc. # 21, at 9.)

Plaintiff appears to recognize that this notice injury is separate from the notice

injury underlying her Bearden claim. (See Doc. # 21, at 15 (“Defendant argues that

the State is not legally required to provide individual notice because Motley had

statutory notice that her license could be suspended for nonpayment. Such statutory

notice, however, is inadequate if Plaintiff prevails on her claim that it violates the

Fourteenth Amendment to suspend a license unless a driver willfully failed to

pay . . . .” (citation omitted)).) The clearest evidence that these legal theories are

separate is in Plaintiff’s discussion of Turner v. Rogers, 564 U.S. 431 (2011).

Plaintiff quotes Cleveland v. City of Montgomery for its finding that “Turner

expanded on Bearden by defining an indigent person’s due process rights under the

Fourteenth Amendment when facing civil contempt . . . includ[ing] (1) notice to the

defendant that his ability to pay is a critical issue in the contempt proceedings; . . . .”

(Doc. # 21, at 13 (quoting Cleveland v. City of Montgomery, No. 2:13-CV-732-

MHT, 2014 WL 6461900, at *4 (M.D. Ala. Nov. 17, 2014).)8

Plaintiff’s choice to plead a single claim for relief adds unnecessary confusion

to this case. But because her claim for relief arises from a single transaction—the

suspension of her driver’s license for nonpayment of traffic fines—Plaintiff is not

required to amend her complaint to separate this theory into an additional count. See

Fed. R. Civ. P. 10(b) (“If doing so would promote clarity, each claim founded on a

separate transaction or occurrence . . . must be stated in a separate count . . . .”); Fed.

R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense

alternatively or hypothetically, either in a single count or defense or in separate ones.

If a party makes alternative statements, the pleading is sufficient if any one of them

is sufficient.”); Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1247 (11th Cir.

2004) (“While it may well be preferable to plead different theories of recovery in

separate counts, it is not required.”); Cole v. United States, 846 F.2d 1290, 1293–94

(11th Cir. 1988) (acknowledging the existence of two legal theories within Plaintiff’s

8 As explained in Part V.F.1.a.i., the court does not share Plaintiff’s belief that Turner

expands Bearden to the civil contempt context.

single count and analyzing their merits separately). However, distinguishing this

legal theory from Plaintiff’s Bearden hybrid theory has important ramifications for

the disposition of Defendant’s jurisdictional and procedural objections. See also

infra note 12 (finding, in the alternative, that even if Plaintiff were required to

separate these theories into two counts, amending the complaint would be futile).

B. The Nature of a Bearden Claim

To understand the jurisdictional and procedural issues, it is helpful to first

understand the curious nature of a Bearden claim. Bearden held that, before ordering

imprisonment for failure to pay a fine, a sentencing court must determine whether

an indigent probationer willfully refused to pay and, if his inability to pay was

through no fault of his own, must consider alternative measures of punishment. 461

U.S. at 672. Bearden built on a line of cases (often called the Griffin line after the

first case in it) addressing discrimination against indigents in criminal proceedings,

generally through an equal protection lens. See infra Part V.F.1.a.i. (discussing the

contexts to which Griffin’s and Bearden’s principles have been extended). Bearden

elaborated on this doctrine by holding that “[d]ue process and equal protection

principles converge in the Court’s analysis in these cases.” Id. at 665. Instead of

slotting Bearden claims into an existing mode of analysis, the Court asserted that

this type of “issue cannot be resolved by resort to easy slogans or pigeonhole

analysis, but rather requires a careful inquiry into such factors as ‘the nature of the

individual interest affected, the extent to which it is affected, the rationality of the

connection between legislative means and purpose, [and] the existence of alternative

means for effectuating the purpose . . . .’” Id. at 666–67 (quoting Williams v. Illinois,

399 U.S. 235, 260 (1970) (Harlan, J., concurring)).

Because of the hybrid nature of this claim, courts have varied in their

analytical approaches to Bearden claims. Bearden itself applied more of a due

process approach. Id. at 666 n.8. The Eleventh and Fifth Circuits have vacillated

between analyzing Bearden claims either under equal protection or procedural due

process standards, and they have often assessed claims under both approaches.9

For example, one of the Eleventh Circuit’s recent Bearden cases involved a

challenge to a city’s policy of detaining indigent arrestees for up to forty-eight hours

before a judge would assess their indigency and decide whether to release them on

a recognizance bond. Walker v. City of Calhoun, 901 F.3d 1245, 1252–53 (11th Cir.

2018). The Circuit held that the district court “was wrong to apply heightened

scrutiny from traditional equal protection analysis” and held that the question at bar

“should be evaluated along something akin to a traditional due process rubric.” Id.

9 Some courts view Bearden as a mix of equal protection and substantive due process.

See, e.g., Johnson v. Jessup, 381 F. Supp. 3d 619, 629 (M.D.N.C. 2019); Mendoza v. Garrett, 358

F. Supp. 3d 1145, 1163 (D. Or. 2018); Robinson v. Purkey, 326 F.R.D. 105, 153 (M.D. Tenn.

2018). But this approach does not merit further discussion because Plaintiff’s claim was not so

pled and because the Eleventh Circuit has blessed a hybrid equal protection and procedural due

process approach.

at 1265. Due process made “particular sense in [that] case because the relief Walker

[sought] [wa]s essentially procedural: a prompt process by which to prove his

indigency and to gain release.” Id.

Still, the opinion in Walker does not lose sight of the equal protection harms

inherent in any Bearden claim.

The sine qua non of a Bearden . . . claim, then, is that the State is

treating the indigent and the non-indigent categorically differently.

Only someone who can show that the indigent are being treated

systematically worse “solely because of [their] lack of financial

resources,”—and not for some legitimate State interest—will be able to

make out such a claim.

Id. at 1260 (quoting Bearden, 461 U.S. at 661). Additionally, the panel deciding

Walker was free to focus on the due process question because the former Fifth

Circuit had already accepted “the principle,” grounded in equal protection, “that

imprisonment solely because of indigent status is invidious discrimination and not

constitutionally permissible.” Id. at 1258 (quoting Pugh v. Rainwater, 572 F.2d

1053, 1056 (5th Cir. 1978)). The panel in Walker was only faced with the procedural

question of how long the city could delay before granting detainees their

constitutionally required opportunity to prove their indigency.

Defendant interprets Walker as holding that all Bearden claims should be

analyzed under a procedural due process framework. Walker and the recent case of

Jones v. Governor of Florida bely this assertion. In Walker, the Eleventh Circuit

discussed a Fifth Circuit case, ODonnell v. Harris County, which held that the

indigent plaintiffs, who previously had no meaningful opportunity to obtain pretrial

release without payment, merited bail hearings after forty-eight hours under both a

due process analysis and by applying heightened scrutiny. Id. at 1266 n.12 (citing

ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018) [hereinafter ODonnell I]); see

also generally ODonnell I, 892 F.3d 147. The Eleventh Circuit believed that

heightened scrutiny was inappropriate in Walker because the defendant already

offered a path to release without payment after forty-eight hours, but it

acknowledged that Mr. Walker would have had a stronger case for heightened

scrutiny had the facts been the same as in ODonnell I. 901 F.3d at 1266 n.12; see

also ODonnell v. Goodhart, 900 F.3d 220, 227 (5th Cir. 2018) [hereinafter ODonnell

II] (considering a later, more stringent preliminary injunction in the same case and

deciding that heightened scrutiny did not apply for the same reason as in Walker:

once the requirement of a hearing is in place, a claim that release is owed before

forty-eight hours is subject to rational basis review).

Any remaining ground that Defendant’s procedural-due-process-only

interpretation could stand on was eliminated by the Eleventh Circuit’s recent opinion

in Jones v. Governor of Florida, 950 F.3d 795 (11th Cir. 2020) (per curiam). In that

case, the plaintiffs challenged a Florida law that interpreted Florida’s new felon-

enfranchisement constitutional amendment to require payment of all fines, fees, and

restitution before a felon was entitled to re-enfranchisement. Jones, 950 F.3d at 802–

03. The plaintiffs brought separate equal protection and due process claims, and the

district court only decided the equal protection claim, so the Eleventh Circuit

likewise analyzed the Bearden claim solely through an equal protection lens. Id. at

806–07 & n.8. The panel applied heightened scrutiny and affirmed the district

court’s preliminary injunction barring the defendants from 1) “preventing [the

plaintiffs] from registering to vote based solely on an inability to pay outstanding

legal financial obligations, where each plaintiff asserts that he or she is genuinely

unable to pay” and from 2) “preventing the plaintiffs from actually voting if indeed

they could establish that they are unable to pay.” Id. at 805, 832–33. As explained

in the previous section, Plaintiff must prevail on her equal protection argument to

have a hope of success on her three Bearden-related due process arguments.

C. Mootness

The question of mootness must be addressed first because “mootness is

jurisdictional.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001).

There is thus no case or controversy, and a suit becomes moot, “when

the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” But a case “becomes moot only

when it is impossible for a court to grant any effectual relief whatever

to the prevailing party.” As “long as the parties have a concrete interest,

however small, in the outcome of the litigation, the case is not moot.”

Chafin v. Chafin, 568 U.S. 165, 172 (2013) (first quoting Already, LLC v. Nike, Inc.,

568 U.S. 85, 91 (2013); and then quoting Knox v. Serv. Emps., 567 U.S. 298, 307–

308 (2012)). Mootness, like other justiciability doctrines such as standing and

ripeness, plays an important role in ensuring “that the parties involved have

something real at stake, motivating them to make arguments on both sides.” Susan

C. Morse & Leigh Osofsky, Regulating by Example, 35 YALE J. ON REG. 127, 163

& n.173 (2018).

Defendant claims that this controversy is moot because Alabama’s traffic

tickets have been revised to warn recipients of the possibility of automatic license

suspension for nonpayment of traffic fines and because the tickets now “provide[]

constitutionally sufficient notice of the recipient’s ability to have his or her ability

to pay any associated fine taken into account.” (See Doc. # 16, at 30–32 (“[T]he

language on Alabama’s traffic tickets now includes notice that the recipient’s driver

license may be automatically suspended if he or she fails to either pay the associated

fine or appear in court in order to have his or her financial condition individually

evaluated . . . .”).) Before this suit was filed, the Alabama Supreme Court adopted

a recommendation from its Standing Committee on the Rules of Judicial

Administration that the Alabama Uniform Traffic Ticket and Complaint be revised.

(Doc. # 7-20, at 3–4.) As of November 30, 2018, the new tickets include the

following instructions,

Upon a plea of guilty or a conviction for the offense charged within this

complaint, you have 60 days to satisfy any monetary judgment against

you. If you cannot pay any monetary judgment against you in 60 days,

you may apply to the court to request payment of a monetary judgment

in installments. You must obtain a court order approving an installment

plan and provide proof of financial responsibility and such an order to

the Secretary of the Alabama Law Enforcement Agency within 60 days

of the entry of any monetary judgment against you OR YOUR

LICENSE WILL BE SUBJECT TO AUTOMATIC SUSPENSION.

Ala. R. Jud. Admin. 19, Attachment One; (Doc. # 7-20, at 38.) The Series N ticket

that Ms. Motley received did not contain this, or any similar language. Specifically,

it did not contain any warning that her license may be suspended for her failure to

pay, and it did not advise her as to what steps she could take if she was unable to pay

the judgment. (Doc. # 7-20, at 3, 14; Doc. # 14-1, at 7; Doc. # 1, ¶ 34, at 9.)

Defendant argues that “the State is already providing Plaintiff with the relief she

purports to seek, so that this Court can afford her no relief beyond what is already

being provided.” (Doc. # 16, at 31.)

“If events that occur subsequent to the filing of a lawsuit or an appeal deprive

the court of the ability to give the plaintiff or appellant meaningful relief, then the

case is moot and must be dismissed.” Al Najjar, 273 F.3d at 1336. While there is

some overlap between the ticket revision and Plaintiff’s non-Bearden-due-process

injury, there remains a clear mismatch between the relief that the State is providing

and the relief that Plaintiff is seeking, which precludes a finding of mootness.

Plaintiff is not seeking to enjoin a return to the previous ticket form, and her license

remains suspended after receiving the earlier ticket version. Therefore, the court’s

ability to grant Ms. Motley meaningful relief is not eliminated by the ticket revision.

First, the ticket revision does not provide the relief that Plaintiff is seeking to

ameliorate her Bearden claims. As discussed in Plaintiff’s mootness arguments,

Plaintiff seeks to enjoin enforcement of Rule 26.11(i)(3) because its current form

authorizes suspensions without requiring the constitutionally mandated safeguards

to which licensees are allegedly entitled. Plaintiff’s Bearden claim is founded on

the belief that licensees must receive separate notice after they have defaulted on

payment but before their licenses are suspended. Said notice must offer an ability-

to-pay hearing, inform drivers that their ability to pay will be a “critical issue” in the

hearing, and inform drivers that their licenses may not be suspended if they are

unable to pay. (Doc. # 21, at 25–26.) The new ticket language does not provide any

of those remedies nor does it reinstate Plaintiff’s license, foreclose Plaintiff’s

requested declaratory relief, or “[p]revent[] ALEA from effectuating driver’s license

suspensions for nonpayment under Alabama Rule of Criminal Procedure

26.11(i)(3).” (Doc. # 1, at 15.)10 The question of whether the court should grant

10 Defendant argues that even if Plaintiff’s claims were meritorious, she would only be

entitled to procedural relief and not a blanket injunction barring enforcement of the Rule.

(Doc. # 16, at 31–32 n.6.) This argument may be correct. See ODonnell I, 892 F.3d at 163 (“The

fundamental source of constitutional deficiency in the due process and equal protection analyses

is the same: the County’s mechanical application of the secured bail schedule without regard for

the individual arrestee’s personal circumstances. Thus, the equitable remedy necessary to cure the

constitutional infirmities arising under both clauses is the same: the County must implement the

constitutionally-necessary procedures . . . .”). However, the ticket revision does not implement

what Plaintiff views as the constitutionally necessary procedures under Bearden, and if she were

to prevail, an injunction more narrowly tailored to rectify her injuries could be crafted. (See Doc.

# 1, at 15 (requesting “other relief as the Court deems just and appropriate”)); see also Rondeau v.

equitable or declaratory relief to rectify Rule 26.11(i)(3)’s alleged shortcomings and

alter Defendant’s enforcement actions is a question for the merits, not for mootness.

See Chafin, 568 U.S. at 174 (“Ms. Chafin argues that this case is moot because the

District Court lacks the authority to issue a re-return order either under the

Convention or pursuant to its inherent equitable powers. But that argument—which

goes to the meaning of the Convention and the legal availability of a certain kind of

relief—confuses mootness with the merits.”).

Second, Plaintiff’s non-Bearden due process claim does not seek the form of

relief offered by this policy change. Therefore, this case does not raise the often-

thorny issue of what to do when a Plaintiff seeks to enjoin or to declare

unconstitutional a policy that a governmental actor has subsequently repealed. See,

e.g., Walker, 901 F.3d at 1269–71. Because Plaintiff did not receive the new traffic

ticket and because her license is still suspended, she has asked for and could merit

license reinstatement to remedy the State’s alleged failure to provide adequate

notice. As Plaintiff persuasively argues, “[e]ven if the change were sufficient to

Mosinee Paper Corp., 422 U.S. 49, 61 (1975) (holding that injunctive relief should be molded to

the necessities of the particular case); ODonnell I, 892 F.3d at 163–67 (vacating the district court’s

preliminary injunction as overbroad and remanding with recommendations for crafting a

preliminary injunction that would require the defendant to provide adequate procedures); Parker

v. Judicial Inquiry Comm’n of Alabama, 295 F. Supp. 3d 1292, 1309 (M.D. Ala. 2018) (“[B]ecause

an injunction is a form of equitable relief, ‘a court need not grant the total relief sought by the

applicant but may mold its decree to meet the exigencies of the particular case.’” (quoting Trump

v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (internal quotation

marks omitted)).

satisfy due process”—which she argues it does not—“it leaves unaltered” Plaintiff’s

claim because she received her ticket before November 30, 2018. (See Doc. # 21, at

27.) If Plaintiff’s Bearden or due process claims were meritorious, some or all of

Plaintiff’s requested declaratory or injunctive relief could be effectually granted, so

Plaintiff’s claims are not moot.

D. Statute of Limitations

Because Plaintiff filed a claim under 42 U.S.C. § 1983 in Alabama, she is

subject to a two-year statute of limitations. Ala. Code § 6-2-38(l); McNair v. Allen,

515 F.3d 1168, 1173 (11th Cir. 2008). When that clock starts running is a question

of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007). In general, “the statute

of limitations begins to run from the date ‘the facts which would support a cause of

action are apparent or should be apparent to a person with a reasonably prudent

regard for his rights.’” Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259,

1261 (11th Cir. 2003) (quoting Rozar v. Mullis, 85 F.3d 556, 561–62 (11th Cir.

1996)).

“[N]ot all injuries are equal. Sometimes, there is one discrete point at which

the injury occurs. Other times, however, the injury happens over and over again.

When the injury occurs determines when the statute of limitations starts running.”

Doe 1 v. Marshall, 367 F. Supp. 3d 1310, 1338 (M.D. Ala. 2019). Plaintiff asserts

that this continuing violations doctrine applies to extend the time limit for her claims.

Consequently, it must be determined whether Plaintiff is suffering from “the present

consequence of a one time violation, which does not extend the limitations period,

[or] the continuation of that violation into the present, which does.” City of Hialeah

v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002) (quoting Carter v. West Publ’g Co.,

225 F.3d 1258, 1263 (11th Cir. 2000)).

“A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate if

it is apparent from the face of the complaint that the claim is time-barred.”

Gonsalvez v. Celebrity Cruises, Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (quoting

La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)). While the

date that Plaintiff’s license was suspended is not apparent from the face of her

complaint, the court takes judicial notice of the fact that Plaintiff’s license was

suspended on December 20, 2013. (Doc. # 14-1, at 55.) This fact is derived from

the Case Action Summary of Plaintiff’s Montgomery County District Court

proceedings, which is attached to Defendant’s motion to dismiss. It may be

judicially noticed because it is “not subject to reasonable dispute because it . . . can

be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b). This fact can be accurately and

readily determined from a public record of state court litigation, a source whose

accuracy cannot reasonably be questioned. See Osheroff, 776 F.3d at 811–12 & n.4

(“Courts may take judicial notice of publicly filed documents, such as those in state

court litigation, at the Rule 12(b)(6) stage.”).

The fact of this judicial act is not in dispute. Plaintiff and Defendant have

each cited this document in their factual summaries as evidence that Plaintiff’s

license was suspended.11 (Doc. # 16, at 8; Doc. # 21, at 8); United States v. Jones,

11 In a footnote of her response brief, Plaintiff disputes Defendant’s interpretation of

another entry in that same document. (Doc. # 21, at 8 n.3; see also Doc. # 21, at 7–8 n.2.)

Defendant interprets an entry stating, “SET FOR: PAY DUE DKT/HEARIN [sic] ON 11/19/2013

@ 0800A,” to mean that Plaintiff had an opportunity to appear in court at that time. (Doc. # 16,

at 7–8.) Plaintiff’s objection is well-taken, and judicial notice is not taken of this fact because it

is subject to reasonable dispute and cannot be accurately determined from the source. (Plaintiff’s

similar objection at footnote 2 of her brief is not styled as a judicial notice objection, (Doc. # 21,

at 7–8, n.2 (citing Doc. # 16, at 17)), but her concern is noted, and consideration of the facts in

dispute is not necessary to decide this motion.)

Plaintiff concludes footnote 3, which specifically objects to the aforementioned fact, by

making an ambiguous request: “Were this Court, however, inclined to take judicial notice,

Plaintiff requests an opportunity ‘to be heard on the propriety of taking judicial notice and the

nature of the fact to be noticed.’ Fed. R. Civ. P. 201(e).” (Doc. # 21, at 8 n.3.) The court has not

ignored Plaintiff’s request for a hearing. For the reasons stated in the main text, the court does not

interpret Plaintiff’s general request to encompass a fact that she has shown to not be in dispute. In

other words, Plaintiff’s actions have waived a hearing on the propriety of taking notice of the date

of suspension. (See, e.g., Doc. # 21, at 14 (relying on the 2013 court filings for what they do not

show: “Defendant’s assertion is factually incorrect because there is no documentation in Motley’s

court records that the judge made an express ability-to-pay finding . . . .”).)

Alternatively, the court may consider this extrinsic document (Doc. # 14-1, at 55) because

it is “(1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings,

Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see also Harris v. Ivax Corp.,

182 F.3d 799, 802 n.2 (11th Cir. 1999).

To the extent that Defendant’s statements regarding how the court “may take into account”

or “may take judicial notice” of “court records relating to the traffic case resulting in the suspension

of Plaintiff’s driver license,” (Doc. # 16, at 6–7 & n.1 (emphasis added)), constitute a broad request

under Rule 201(c)(2) to take judicial notice of all of the facts contained within these records, that

request is denied. Such notice is unnecessary to decide this motion. See Fed. R. Evid. 201(c)(2)

(“The court . . . must take judicial notice if a party requests it and the court is supplied with the

necessary information.”). To the extent that Defendant’s statement that “the [c]ourt may also

confirm the applicability of the statute of limitations to Plaintiff’s claims by taking judicial notice”

constitutes a 201(c)(2) request, (Doc. # 16, at 14–15), that request is granted for the reasons stated

29 F.3d 1549, 1553 (11th Cir. 1994) (“[A] court may take notice of another court’s

order only for the limited purpose of recognizing the ‘judicial act’ that the order

represents or the subject matter of the litigation.”). Plaintiff cites Defendant’s

exhibit at the page in question for the fact that “the court simply issued a warrant for

Motley’s arrest and suspended her driver’s license for nonpayment. Doc. 14-1 at

55.” (Doc. # 21, at 8.) Because there is only one entry on that page relating to

imposing a suspension, Plaintiff can only be referring to the Alacourt entry stating

“12/20/13 . . . SUSPENSION NOTICE FOR FTP ISSUED.” In her response brief,

Plaintiff’s statute of limitations argument does not discuss when the claim first

accrued or argue that it first accrued during the two years preceding her filing.

Plaintiff’s argument that the continuing violations doctrine should apply is an

acknowledgement that she learned or should have learned of her suspension before

July 3, 2017.

in the main text. Ultimately, the court does not take judicial notice of any other facts contained in

Document # 14-1 for the purposes of Defendant’s 12(b)(6) motion because such facts are

unnecessary to decide this case.

Additionally, Plaintiff’s complaint cites several of the exhibits accompanying her motion

for a preliminary injunction, including Docs. # 7-1, 7-2, 7-3, 7-4, 7-6, 7-7, 7-8, 7-9, 7-10, 7-11, 7-

12, 7-13, 7-14, 7-15, and 7-16. It is not necessary to take judicial notice of facts within these

documents nor to make a finding regarding whether these documents are properly incorporated by

reference into Plaintiff’s complaint because viewing the complaint’s allegations of fact as true

accomplishes the same purpose. It is worth noting that both Plaintiff and Defendant are guilty of

referencing facts and documents outside the complaint without explaining why the court can

consider these facts or documents without converting this 12(b)(6) motion into a motion for

summary judgment.

As noted by a district court considering a similar suspension claim,

“determining whether a particular § 1983 claim presents a continuing violation

depends, in significant part, on the court’s determining ‘what constitutes the

defendant’s ‘wrongful conduct’ . . . .” Robinson v. Purkey, 326 F.R.D. 105, 146

(M.D. Tenn. 2018) (quoting Doe v. Haslam, No. 3:16-CV-02862, 2017 WL

5187117, at *11 (M.D. Tenn. Nov. 9, 2017)). “Defining the wrongful conduct, in

turn, ‘is closely related to the nature of the constitutional protection at issue.’ . . .

[T]he same general pattern of events may present either a continuing or a non-

continuing violation, depending on the constitutional lens through which those

events are viewed.” Id. (quoting Doe v. Haslam, No. 3:16-CV-02862, 2017 WL

5187117, at *12 (M.D. Tenn. Nov. 9, 2017)); see also Perez v. Laredo Junior Coll.,

706 F.2d 731, 734–35 (5th Cir. 1983) (holding that a due process claim for the denial

of a pay raise after attaining a doctoral degree outside the plaintiff’s teaching area

was a single act, but holding that an equal protection claim for not receiving that pay

raise while the plaintiff’s employer granted raises to other employees for attaining

such doctorates could be a continuing violation); Long v. State of Fla., 805 F.2d

1542, 1546 (11th Cir. 1986) (citing Perez’s continuing violation discussion with

approval), rev’d on other grounds, 487 U.S. 223 (1988), and abrogated on other

grounds by Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990); Doe 1, 367

F. Supp. 3d at 1339 (distinguishing the plaintiffs’ First Amendment compelled

speech and overbreadth claims, which inflicted new injuries each day, from other

cases where the plaintiffs complained of being wrongfully registered as sex

offenders, which accrued when they learned that they had been registered).

Plaintiff’s Bearden theory (and its accompanying four injuries) is entitled to

evaluation under a different constitutional lens from Plaintiff’s non-Bearden

procedural due process theory. This case poses a particularly tricky statute of

limitations issue due to the odd nature of a Bearden claim, as detailed in Part V.B.

On the question of whether the continuing violations doctrine applies, the Supreme

Court’s command that this “issue cannot be resolved by resort to easy slogans or

pigeonhole analysis” hitches this court to two doctrines pulling in opposite

directions. Bearden, 461 U.S. at 666.

As illustrated in the parties’ briefs, discrimination claims often qualify as

continuing violations because each instance of differential treatment is a new injury.

See, e.g., Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 449 (11th Cir.

1993) (“When the claim is one for discriminatory wages, the violation exists every

single day the employee works.”); Mitchell v. Jefferson Cty. Bd. of Educ., 936 F.2d

539, 548 (11th Cir. 1991) (“[S]ex based, discriminatory wage payments constitute a

continuing violation of the Equal Pay Act.” (quoting Hodgson v. Behrens Drug Co.,

475 F.2d 1041, 1050 (5th Cir. 1973))); Perez, 706 F.2d at 734–35 (holding that an

equal protection claim for not receiving a pay raise after attaining a doctoral degree

outside the plaintiff’s teaching area while the plaintiff’s employer granted raises to

other employees for attaining such doctorates could be a continuing violation); Long,

805 F.2d at 1546 (citing Perez’s continuing violation discussion with approval);

Robinson, 326 F.R.D. at 146 (holding that the plaintiffs could bring otherwise

untimely equal protection claims because “the plaintiffs’ injuries include the fact

that the state’s scheme currently treats them differently from otherwise identical

non-indigent drivers, by allowing those drivers to have their suspensions lifted by

making payments that the plaintiffs cannot make”).

On the other hand, violations of due process for a property deprivation

generally begin to run when the property is taken. See, e.g., Hillcrest Prop., LLC v.

Pasco Cty., 754 F.3d 1279, 1283 (11th Cir. 2014) (holding that a substantive due

process claim facially challenging an ordinance that decreased the plaintiff’s

property value accrued when the ordinance passed and immediately reduced the

property’s value); Lufkin v. McCallum, 956 F.2d 1104, 1106, 1108 (11th Cir. 1992)

(affirming the district court’s finding of untimeliness in a due process claim when

the adverse employment action at issue was more than three years before the filing

date); Doyle v. Univ. of Ala. in Birmingham, 680 F.2d 1323, 1326 (11th Cir. 1982)

(holding that the plaintiff’s procedural due process claim for the deprivation of a

property interest “accrued on the date that she was placed on leave or probation

without a noticed hearing”), superseded by statute on other grounds, Civil Rights

Restoration Act of 1987, Pub. L. No. 100–259, 102 Stat. 28 (1988), as recognized

in McMullen v. Wakulla Cty. Bd. of Cty. Commissioners, 650 F. App’x 703, 704–05

(11th Cir. 2016); Montanez v. Sec’y Pa. Dep’t of Corrs., 773 F.3d 472, 480 (3d Cir.

2014) (holding that an inmate’s due process claim accrued when he knew or should

have known that the Department of Corrections had “deprived [him] of his property

interests, allegedly without due process”); Perez, 706 F.2d at 734 (holding that a due

process claim for the denial of a pay raise after attaining a doctoral degree outside

of the plaintiff’s teaching area was a single act); Johnson v. Jessup, 381 F. Supp. 3d

619, 636 (M.D.N.C. 2019) (assessing the timeliness of due process claims in a

similar case and finding that “the DMV’s revocation of driver’s licenses is a ‘single

act’ — the fact that licenses remain revoked thereafter does not evince ‘a series of

separate acts’ in which the DMV revokes the driver’s licenses anew each day”

(quoting Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1167 (4th Cir. 1991)));

Robinson, 326 F.R.D. at 145, 148 (dismissing procedural due process claims based

on suspensions that occurred more than one year before filing). Naturally,

Defendant argues that Plaintiff’s injury is the “alleged deprivation of this state-

created property interest” resulting from “a discrete action by the Montgomery

County District Court on December 20, 2013, when it ordered her license suspended

for failing to pay her traffic fines and court costs.” (Doc. # 22, at 4–5.)

The court agrees that the continuing violations doctrine does not apply to a

non-Bearden due process claim. Viewed through that constitutional lens,

Defendant’s wrongful conduct is the initial deprivation of Plaintiff’s property

interest, allegedly without adequate notice. Therefore, Plaintiff’s claim that

“[n]either the court nor ALEA gave her notice that her driver’s license could be

suspended for nonpayment” (Doc. # 1, ¶ 34, at 9) is time-barred.12 See supra Part

V.A. (explaining why this injury is analyzed separately from Plaintiff’s Bearden

injuries).

But Plaintiff’s Bearden injuries do not constitute a pure procedural due

process claim. Plaintiff invokes the equal protection aspect of her Bearden claim

and argues that Defendant’s wrongful conduct is ongoing unequal treatment: “Rule

26.11 authorizes an indefinite suspension based solely on nonpayment while

allowing non-indigent drivers to avoid suspension altogether—or to obtain

immediate reinstatement—by paying their fines and court costs in full.” (Doc. # 21,

at 19.)

12 If, contrary to the court’s conclusion in Part V.A., Plaintiff were required to bring this

due process claim as a separate count, Plaintiff would not merit leave to amend her complaint

because this count would be time-barred. “[A] motion for leave to amend may appropriately be

denied . . . where amendment would be futile.” In re Engle Cases, 767 F.3d 1082, 1108–09 (11th

Cir. 2014) (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)); see also Coventry

First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010) (“A proposed amendment may be

denied for futility ‘when the complaint as amended would still be properly dismissed.’” (quoting

Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)).

If this were any other § 1983 claim arguing procedural due process and equal

protection theories, the due process claims could be dismissed while the equal

protection claims remained. That avenue is not available here given the

interdependent nature of Plaintiff’s Bearden claim. See supra Part V.A. Therefore,

the timeliness of this case hinges upon whether the statute of limitations turns on the

dominant features of the injury (a procedural injury) or that any part of the injury is

a continuing violation. For the reasons below, this claim is not time-barred because

Plaintiff’s equal protection injury—that she is harmed by an allegedly discriminatory

program—is essential to her Bearden claim.

Based on the dominant injuries suffered and remedy sought, Plaintiff’s

Bearden claim looks at first glance like a procedural due process claim, akin to

Walker. The complaint nods to equal protection by alleging that the State is

“punishing people simply because they are poor” and by stressing the impact of

suspensions on Alabama’s poor. (Doc. # 1, ¶¶ 1, 10–17, at 1, 3–5.) However, the

bulk of the complaint alleges quintessential due process injuries, claiming that Rule

26.11(i)(3) unconstitutionally authorizes and Defendant unconstitutionally

administers license suspensions without prior notice, without the opportunity to be

heard, and without an express finding that the motorist can pay but willfully failed

to do so. (Doc. # 1, ¶¶ 19–22, 29, 30, 34, 39, 43–44, 50, 55–56, 60.) Plaintiff’s

Bearden claim is so lopsided in this regard that, in the statute of limitations section

of her brief, her only direct references to her complaint are to her remedy,

“prospective injunctive relief against Defendant to enjoin the continued suspension

of her driver’s license,” (Doc. # 21, at 19–20 (emphasis in original)), and to one line

of her complaint indicating that her driver’s license “remains suspended because she

is unable to pay her traffic ticket in full,” (Doc. # 21, at 19 (citing Doc. # 1, ¶ 33, at

9)).

Still, Plaintiff’s argument that her procedural injuries result from an ongoing

discriminatory program cannot be ignored. Plaintiff points to another driver’s

license suspension case, Robinson v. Purkey, to support her theory. In that case, the

district court dismissed separately brought procedural due process claims but held

that the plaintiffs could bring otherwise untimely equal protection claims because

“the plaintiffs’ injuries include the fact that the state’s scheme currently treats them

differently from otherwise identical non-indigent drivers, by allowing those drivers

to have their suspensions lifted by making payments that the plaintiffs cannot make.”

326 F.R.D. at 145–48. She argues that her Bearden claim is likewise timely because

a similar discrimination allegation is woven into the hybrid claim.

Defendant argues that Robinson is unpersuasive because it analogized the

plaintiffs’ claimed harm to the harms suffered in a Sixth Circuit substantive due

process case despite there being no fundamental right to possess a driver’s license.

(Doc. # 22, at 3–4.) Defendant earns points for paying attention to case details: An

equal protection claim need not involve an injury to a fundamental right. However,

both claims can involve allegations of systematic and ongoing deprivations, so

substantive due process cases can be apt analogies when determining the

applicability of the continuing violations doctrine. Defendant also alleges that

Robinson, and by extension Plaintiff’s argument, is unpersuasive because it fails to

follow Walker’s procedural due process analysis of a Bearden claim. However,

Walker provides a logical rationale for reconciling this issue.

Even though the Eleventh Circuit in Walker recommended using a procedural

due process analysis to evaluate Mr. Walker’s entitlement to what was essentially

procedural relief, the panel emphasized that equal protection principles and values

still underlie any Bearden claim. Walker, 901 F.3d at 1260. Walker, ODonnell I &

II, and this case involve allegations that additional process may be needed to address

“an allegation of categorically worse treatment of the indigent.” Id.; ODonnell I,

892 F.3d at 163; ODonnell II, 900 F.3d at 224; see also Walker, 901 F.3d at 1265

(“The district court should have applied [a due process] analysis in evaluating

whether the Standing Bail Order comported with the Constitution’s equal protection

and due process guarantees.” (emphasis added)); Briggs v. Montgomery, No. CV-

18-02684-PHX-EJM, 2019 WL 2515950, at *22 (D. Ariz. June 18, 2019) (applying

the continuing violations doctrine to the plaintiffs’ Bearden hybrid claims because

the plaintiffs alleged that a pretrial diversion program systematically discriminated

on the basis of wealth). In this light, Plaintiff Motley seeks procedural relief to

remedy the suspension of her driver’s license that allegedly results from an ongoing

policy that discriminates against the poor. Because Plaintiff’s discrimination

allegation is essential and non-severable from the rest of her Bearden claim, that

claim (and the four injuries related to it) are timely.

E. Laches

Defendant also argues that Plaintiff’s claims are barred by the equitable

doctrine of laches. To succeed on this defense, Defendant must show 1) “a delay in

asserting a right or claim,” 2) “that the delay was not excusable,” and 3) “that there

was undue prejudice to the party against whom the claim is asserted.” Black Warrior

Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1283 (11th Cir.

2015) (quoting Ecology Ctr. of La., Inc. v. Coleman, 515 F.2d 860, 867 (5th Cir.

1975)). The effect of Plaintiff’s delay and whether allowing the suit would be

inequitable to Defendant are generally the focal points of a laches inquiry.

[L]aches does not result from a mere lapse of time but from the fact

that, during the lapse of time, changed circumstances inequitably work

to the disadvantage or prejudice of another if the claim is now to be

enforced. By his negligent delay, the plaintiff may have misled the

defendant or others into acting on the assumption that the plaintiff has

abandoned his claim, or that he acquiesces in the situation, or changed

circumstances may make it more difficult to defend against the claim.

11A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 2946 (3d

ed. 2019) (quoting WILLIAM Q. DE FUNIAK, HANDBOOK OF MODERN EQUITY § 24, at

41 (2d ed. 1956)); see also Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474, 478

(5th Cir. 1980)13 (“One basic principle has, however, been consistently followed:

equitable remedies are not available if granting the remedy would be inequitable to

the defendant because of the plaintiff’s long delay.”).

“Whether laches bars an action in a given case depends upon the

circumstances of that case and is ‘a question primarily addressed to the discretion of

the trial court.’” Alexander, 614 F.2d at 478 (quoting Gardner v. Panama R. Co.,

342 U.S. 29, 30 (1951)). “Given the fact sensitive nature of a laches inquiry, courts

have been hesitant to bar claims under a laches defense when there is limited factual

information available,” such as at the pleading stage. Groucho’s Franchise Sys.,

LLC v. Grouchy’s Deli, Inc., No. 1:14-CV-1725-LMM, 2015 WL 11256661, at *2

(N.D. Ga. July 1, 2015) (collecting cases). However, “laches may be asserted by

motion to dismiss for failure to state a claim—provided that the complaint shows

affirmatively that the claim is barred.” Herron v. Herron, 255 F.2d 589, 593 (5th

Cir. 1958).

Plaintiff claims that laches categorically cannot bar claims for prospective

injunctive relief. (Doc. # 21, at 20.) This is an unsettled legal question. See Envtl.

Def. Fund. v. Marsh, 651 F.2d 983, 1005 n.32 (5th Cir. 1981) (“[L]aches may not

13 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed

down prior to October 1, 1981.

be used as a shield for future, independent violations of the law. The concept of

undue prejudice, an essential element in the defense of laches, is normally

inapplicable when the relief is prospective.”); Jacobson v. Lee, 411 F. Supp. 3d

1249, 1264–65 (N.D. Fla. 2019) (“It is not clear whether laches applies at all to

claims for prospective relief from continuing constitutional violations.” (first citing

Garza v. Cty. of Los Angeles, 918 F.2d 763, 772 (9th Cir. 1990); then citing Peter

Letterese & Assocs., Inc. v. World Inst. of Scientology Enters. Int’l, 533 F.3d 1287,

1321 (11th Cir. 2008); and then citing Democratic Exec. Comm. of Fla. v. Lee, 915

F.3d 1312, 1326 (11th Cir. 2019))). Plaintiff supports her argument with citation to

one Eleventh Circuit case, which stated in the copyright infringement context that

“laches serves as a bar only to the recovery of retrospective damages, not to

prospective relief.” Peter Letterese & Assocs., Inc. v. World Inst. of Scientology

Enters. Int’l, 533 F.3d 1287, 1321 (11th Cir. 2008); see also id. at 1321 n.41

(collecting cases in the copyright context where courts held that laches cannot bar

injunctions against future intellectual property infringements). It is not clear whether

this principle applies to constitutional claims. But it need not be determined whether

Plaintiff’s claimed per se bar exists because Defendant has not made a strong

showing of prejudice and is therefore unlikely to merit the application of laches to

Plaintiff’s Bearden claim.

Plaintiff has unquestionably delayed in bringing her claims. Her proffered

reason for the delay, that “[s]he is not trained in the law and had no reason to suspect

that her driver’s license suspension was unlawful,” (Doc. # 21, at 21), has been

rejected by the former Fifth Circuit. Akers v. State Marine Lines, Inc., 344 F.2d 217,

220 (5th Cir. 1965) (“‘[W]e know of no principle which enables persons to plead,

not excusable ignorance of facts, but of the law which accorded them the right to

sue.’ Appellant’s mistake as to the law or his unwillingness to press his claim when

there was authority which indicated he might not prevail, cannot serve to excuse his

delay . . . .” (quoting Morales v. Moore-McCormack Lines, Inc., 208 F.2d 218, 221

(5th Cir. 1953))).

Read in context, the cases cited by Plaintiff stand for the proposition that a

“plaintiff’s lack of knowledge” of the facts underlying a possible claim “can serve

as reason for delay.” Black Warrior Riverkeeper, 781 F.3d at 1284–85 (holding that

“[t]he district court . . . abused its discretion when it gave no weight to Riverkeeper’s

need to evaluate, investigate, and prepare its claims for litigation”); Alexander, 614

F.2d at 479 (“Their claim in effect is reduced to the assertion they did not realize it

was illegal for the Army to do what it had done. However, the application of laches

does not depend on subjective awareness of the legal basis on which a claim can be

made. Moreover, . . . the record contains ample evidence that the problem should

have been known . . . .”); see also Save Our Wetlands, Inc. v. U.S. Army Corps of

Eng’rs, 549 F.2d 1021, 1027–28 (5th Cir. 1977) (rejecting the plaintiffs’ claim that

“their delay in bringing this case is excusable because they were unaware of any

illegality” surrounding the challenged development on the grounds that they had

notice of the fact that the challenged development was underway). Because Plaintiff

knew or should have known of the facts giving rise to her claim sometime between

December 20, 2013, and July 2, 2017, lack of legal knowledge does not excuse her

delay.

Evaluating claims of prejudice requires balancing the equities, weighing both

the harm to Defendant, as well as the benefits that might result if Plaintiff is allowed

to pursue her claim. Black Warrior Riverkeeper, 781 F.3d at 1286. Defendant

argues it has been prejudiced in three ways: 1) Defendant has expended resources to

defend against Plaintiff’s suit, 2) the delay in filing suit impairs Defendant’s ability

to defend himself, and 3) the State changed its traffic tickets before this suit was

filed to specifically inform drivers that their licenses will be suspended unless they

request and receive a payment plan from the court. (Doc. # 16, at 16–18.)

Defendant’s first argument that it is prejudiced by having to defend Plaintiff’s

claims at all is specious because it is a harm that Defendant would suffer regardless

of when Plaintiff filed her lawsuit. As stated in Black Warrior Riverkeeper, “Any

harm demonstrated by the [Defendant] must stem specifically from [Plaintiff’s]

delay in bringing suit, rather than from the consequences of an adverse decision on

the merits . . . .” 781 F.3d at 1286. Defendant’s first argument fails because the

asserted harm does not stem from Plaintiff’s delay. Likewise, Defendant’s third

argument that it is prejudiced by the Alabama Supreme Court’s choice to revise the

State’s traffic tickets is frivolous because that action is not causally connected to

Plaintiff’s delay, nor was it taken in reliance on Plaintiff’s silence. An argument that

Defendant should not have to defend against moot claims is a mootness argument,

not a laches argument.

Defendant’s only cognizable argument is that it has been prejudiced by the

loss of memory and evidence regarding what happened at Plaintiff’s traffic court

hearing. Specifically, Defendant claims to be prejudiced by the uncertainty

surrounding whether the Montgomery County District Judge asked Plaintiff about

her ability to pay her traffic ticket when he imposed her fine. Defendant points to

Plaintiff’s Declaration, attached to Plaintiff’s motion for class certification, which

states, “I do not remember the Judge asking me about my finances or whether I could

pay the ticket.” (Doc. # 5-1, ¶ 3, at 1.) It need not be decided whether Plaintiff’s

declaration or the other evidence cited by Defendant can be considered for purposes

of this 12(b)(6) motion. (See Doc. # 16, at 17 (claiming that “[t]he Montgomery

County District Judge’s order indicates on its face that he did make a determination

that Plaintiff could pay by November 19, 2013, or at least that she should reappear

in court on that date to explain why she could not” (emphasis in original))); see also

supra note 11 (addressing Plaintiff’s objection to Defendant’s characterization of the

Montgomery County District Judge’s order). Even if this evidence were considered,

Defendant’s argument is unavailing because of the nature of Plaintiff’s Bearden

claim. Plaintiff claims that Defendant’s enforcement of Rule 26.11(i)(3) violated

her Fourteenth Amendment rights and injured her through Defendant’s failure to

give her notice “that her ability to pay is a critical issue in determining the

appropriateness of suspension” and to offer “an ability to pay hearing” after she

defaulted but before her license was suspended. (Doc. # 1, ¶ 34, at 9; Doc. # 21, at

22.) She argues that Rule 26.11(i)(3) is facially unconstitutional because it

authorizes suspensions without requiring the State to provide these protections.

What happened at Plaintiff’s fine-imposition hearing is largely irrelevant to

Plaintiff’s Bearden claim because she undisputedly did not receive the process she

believes she is due.

Simply put, Defendant’s prejudice arguments are dissimilar to cases where

government actors have successfully asserted a laches defense. Defendant has not

begun construction on some public works project. Alexander, 614 F.2d at 480. The

State is not printing ballots for an election while battling allegations that additional

candidates should be on it, Perry v. Judd, 471 F. App’x 219, 223, 227 (4th Cir. 2012),

or facing the prospect of drawing new electoral districts twice in two years, Chestnut

v. Merrill, 377 F. Supp. 3d 1308, 1317 (N.D. Ala. 2019); see also Sanders v. Dooly

Cty., 245 F.3d 1289, 1290–91 (11th Cir. 2001) (per curiam) (affirming a district

court’s application of laches in part because “redistricting late in the decade would

lead to back-to-back redistrictings”). “In [this] case, however, the Secretary has not

alleged, let alone provided evidence of, some substantial administrative or logistical

difficulties, confusion, disorganization, or expense which would be caused if the

court allowed the [P]laintiff[] to press these admittedly delayed constitutional

claims.” Mich. Chamber of Commerce v. Land, 725 F. Supp. 2d 665, 682 (W.D.

Mich. 2010) (involving an as-applied challenge to the Michigan Secretary of State’s

interpretation of the Michigan Campaign Finance Act). In fact, if Plaintiff’s suit is

meritorious, Plaintiff’s delay has saved Defendant from expending State resources

on additional notices and hearings over the last six years.

Despite Defendant’s attempts to shift focus onto the notice and hearing given

before imposition of a traffic fine (as Defendant does throughout its briefing),

Plaintiff’s Bearden claim centers on Alabamians’ alleged rights to notice and a

hearing in the time between default and suspension. There is no dispute that Plaintiff

was not afforded such process and that Rule 26.11(i)(3) does not require it.

Ultimately, Defendant has made a weak showing of prejudice, which is fatal to its

claim for laches. Plaintiff’s laches argument did not mention any benefits to weigh

against Defendant’s prejudice, but even if Plaintiff only stood to gain a negligible

improvement in her quality of life, such benefits would outweigh Defendant’s

claimed inequity.

Defendant must also show that its stated grounds for prejudice apply to

Plaintiff’s claim for declaratory relief, which is a heavier lift. Sanders, 245 F.3d at

1291 (“None of the grounds for prejudice that the district court relied on applies to

the plaintiffs’ claims for a declaration that the 1992 plan violates the Equal

Protection Clause.”); Navarro v. Neal, 716 F.3d 425, 429–30 (7th Cir. 2013)

(allowing a claim for declaratory relief to proceed because the court failed to see

“how the plaintiffs’ delay in filing suit could impact a purely prospective remedy”).

But see City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005)

(applying laches to bar an Indian tribe’s claims for declaratory and injunctive relief

recognizing its sovereignty over parts of central New York). The rationale employed

to permit Plaintiff’s Bearden claim for injunctive relief applies with equal, if not

greater, force to Plaintiff’s Bearden claim for declaratory relief, so that claim is not

barred by laches.

Defendant has not made a specific argument that Plaintiff’s non-Bearden

procedural due process claim is barred by laches. Unlike Plaintiff’s Bearden claim,

Plaintiff’s claim that she was not notified that her license could be suspended for

nonpayment could depend on the facts of what she was told by, for example, the

officer who wrote her traffic ticket or the judge who imposed her fine. The memories

of these, and other witnesses, may have faded. (There is no dispute that Rule

26.11(i)(3) does not require the State to give individual notice of this possibility.)

However, Defendant has not argued this exact point, and prejudice to Defendant is

not evident from Plaintiff’s complaint or filings. While Defendant has made a

general objection that “memories are fuzzy,” (Doc. # 22, at 7), its only evidence of

stale memories is Plaintiff’s statement that she does not remember if the judge at her

fine-imposition hearing asked about her ability to pay. Defendant’s arguments do

not call into question Plaintiff’s allegation that “[n]either the court nor ALEA gave

her notice that her driver’s license could be suspended for nonpayment.” (Doc. # 1,

¶ 34, at 9.) Although, if Plaintiff bears the burden of showing “either absence of

prejudice or an excuse for delay” on this claim, she would likely fail to meet her

burden. See Coffey v. Braddy, 834 F.3d 1184, 1192 (11th Cir. 2016) (“When a claim

is filed within the analogous statutory period, the burden is on the defendant to show

that it was prejudiced by the plaintiff’s inexcusable delay; when the claim is filed

outside of the statutory period, the plaintiff must show either absence of prejudice

or an excuse for delay.”) This issue need not be decided because it has not been

fully briefed and because the statute of limitations bars this procedural due process

claim.

F. The Merits

1. Equal Protection

Recent Bearden cases such as Walker and ODonnell I have taken for granted

that a plaintiff could prevail by successfully arguing either an equal protection or a

due process theory. The courts deciding these cases could choose to employ either

rubric because previous cases had already established that a government must have

some concern for the burdens placed upon indigent people in the contexts of pre-

trial detention. However, this case is an exception because Griffin/Bearden’s

principle of “equal justice” for indigent people has not been extended to the context

of driver’s license suspensions.

Therefore, before it can be determined whether the State was constitutionally

required to give Plaintiff notice “that her ability to pay is a critical issue in

determining the appropriateness of suspension,” to provide her “an ability to pay

hearing prior to the suspension,” and/or to make an express finding that she willfully

failed to pay, (Doc. # 1, at 9), Plaintiff must first state a plausible claim that Rule

26.11(i)(3) is facially unconstitutional because it authorizes suspensions without

requiring the State to consider her ability to pay. Plaintiff has not argued a

substantive due process theory, nor would she likely succeed on such a claim in this

Circuit. See McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc)

(“[A]reas in which substantive rights are created only by state law (as is the case

with tort law and employment law) are not subject to substantive due process

protection . . . .”); Burlison v. Rogers, 311 F. App’x 207, 208 (11th Cir. 2008) (per

curiam) (“When the right at stake—here, possession of a driver’s license—is a right

created only by state law, it is not a right that gives rise to substantive due process

protection under the Due Process Clause.” (citing McKinney, 20 F.3d at 1555–56)).

Therefore, the right to an indigency exception must arise under the Equal Protection

Clause. This case is more analogous to Jones than Walker because it must be

determined whether Bearden’s principles extend to this context. Accordingly, the

court will follow the analytical steps laid out in Jones, with an added intermediate

step from Walker, regarding whether and how to apply heightened scrutiny to a

purported Bearden claim.

a. Heightened Scrutiny

The Jones panel provided a two-step instruction manual on how to determine

the applicability and effect of heightened scrutiny. First, determine if this type of

case falls within one of the “discrete areas” where “the Supreme Court has told us

that wealth classifications require more searching review.” Jones, 950 F.3d at 817.

Second, if this case is subject to more searching review, analyze whether Bearden’s

four factors counsel in favor of a determination that the challenged Rule is

unconstitutional. Id. at 825. Walker adds an additional necessary condition after

Jones’s first step: determine if the policy produces an absolute deprivation or a mere

diminishment of Plaintiff’s interest.

i. Jones Step 1

“Where a law draws suspect classifications or burdens fundamental rights, we

look beyond the benign glance of rational basis review and demand a tighter fit

between the classification and the government’s interests.” Jones, 950 F.3d at 817.

This case does not fit into either category because “wealth is not a suspect

classification,” Jones, 950 F.3d at 817, and a driver’s license is not a fundamental

right. McKinney, 20 F.3d at 1556; Burlison, 311 F. App’x at 208. Therefore, the

Rule only merits heightened scrutiny if it falls into an “exception[] to that general

rule,” M.L.B., 519 U.S. at 124, “that fee requirements ordinarily are examined only

for rationality.” Id. at 123; see also Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f

a law neither burdens a fundamental right nor targets a suspect class, we will uphold

the legislative classification so long as it bears a rational relation to some legitimate

end.”); Jones, 950 F.3d. at 817 (citing M.L.B., 519 U.S. at 123).

So far, four categories of cases have fallen into this exception. Bearden’s

exception applies to wealth discrimination that affects the administration of criminal

justice, particularly by imprisoning or punishing14 indigents for their inability to

14 The Jones panel interpreted the Bearden-Tate-Williams line of cases to stand for the

proposition that “[t]he Supreme Court has also determined that a state may not extend punishment

satisfy some financial burden. See Bearden, 461 U.S. 660; Tate v. Short, 401 U.S.

395, 399 (1971) (“Since Texas has legislated a ‘fines only’ policy for traffic offenses,

that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the

punishment to payment of the fine if one is able to pay it, yet convert the fine into a

prison term for an indigent defendant without the means to pay his fine.”); Williams

v. Illinois, 399 U.S. 235, 240–41 (1970) (holding that Illinois’s practice of extending

a prisoner’s sentence beyond the maximum authorized by the statute of conviction

because of a prisoner’s “involuntary nonpayment of a fine or court costs” is “an

impermissible discrimination that rests on ability to pay”); Jones, 950 F.3d at 820

(holding that heightened scrutiny is warranted where the state “demanded that

punishment continue for some and not others based on wealth” and doubly so “where

the punishment itself takes the form of denying access to the franchise”); Walker,

901 F.3d 1245.

Griffin’s exception applies to policies, such as filing and transcript fees, that

restrict access to courts in criminal cases and in civil habeas actions. See, e.g., Mayer

v. Chicago, 404 U.S. 189 (1971) (applying Griffin to overturn Chicago’s practice of

only providing free transcripts for appeals in felony cases); Smith v. Bennett, 365

U.S. 708, 713 (1961) (holding that states must “docket applications for the post-

on account of inability to pay fines or fees.” Jones, 950 F.3d at 818 (emphasis added). This

holding is surprising considering that the most readily apparent commonality among the Bearden

line of cases is imprisonment. Still, this new interpretation is binding.

conviction remedy of habeas corpus by indigent prisoners without [a] fee payment”);

Griffin, 351 U.S. 12 (holding that the “guarantees of due process and equal

protection” forbid states from conditioning a criminal defendant’s right to appeal on

the appellant’s ability to afford a transcript).

Griffin’s exception has also been extended to provide access to courts in civil

cases involving state controls or intrusions on fundamental family relationships. See

M.L.B., 519 U.S. at 116, 128 (holding that states cannot condition the right to appeal

a decision permanently terminating parental rights on the terminated parent’s ability

to afford a transcript); Little v. Streater, 452 U.S. 1, 13–17 (1981) (holding that states

must pay for blood grouping tests sought by an indigent defendant to enable him to

contest a paternity suit); Zablocki v. Redhail, 434 U.S. 374 (1978) (striking down a

statute that required an individual to show that he had satisfied court-ordered child

support before being able to marry); Boddie v. Connecticut, 401 U.S. 371 (1971)

(holding that states cannot deny divorce to indigent couples for failing to pay court

costs).

The fourth exception has applied to restrictions on the right to participate in

political processes as voters and candidates. See, e.g., Lubin v. Panish, 415 U.S.

709, 710, 718 (1974) (invalidating a California statute requiring payment of a ballot-

access fee fixed at a percentage of the salary for the office sought); id. at 719–20

(Douglas, J., concurring) (invoking Griffin in support of the Court’s holding);

Bullock v. Carter, 405 U.S. 134, 135, 145, 149 (1972) (invalidating a Texas scheme

under which candidates for local office had to pay fees as high as $8,900 to get on

the ballot); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 664, 666 (1966)

(invalidating, as a denial of equal protection, an annual $1.50 poll tax imposed by

Virginia on all residents over the age of 21); Jones, 950 F.3d at 823 (“[O]nce a state

provides an avenue to ending the punishment of disenfranchisement—as the voters

of Florida plainly did—it must do so consonant with the principles of equal

protection and it may not erect a wealth barrier absent a justification sufficient to

overcome heightened scrutiny.”); see also id. at 825 (“Quite simply, two strands of

Supreme Court law—those embodied in its Griffin–Bearden line of cases outlawing

different levels of punishment for similarly situated defendants, solely on account of

wealth, and those found in the Harper line of cases underscoring the importance of

access to the ballot—run together in this case. These weighty interests are directly

implicated[,] and they yield the conclusion that we must examine the Amendment’s

impact on the seventeen named plaintiffs through the lens of heightened scrutiny.”).

Despite Plaintiff’s arguments to the contrary, these four categories are

currently the only exceptions meriting heightened scrutiny, and neither the Supreme

Court nor the Eleventh Circuit is engaged in a steady course of adding to this list.

See Jones, 950 F.3d at 817–21. In the Griffin access-to-courts line of cases, the

Court has rejected exceptions involving interests that are at least as important to

individuals as Plaintiff’s interest in her license, including one’s interest in filing for

bankruptcy or in appealing welfare determinations. See, e.g., Ortwein v. Schwab,

410 U.S. 656, 659 (1973) (per curiam) (“In Kras, we observed that one’s interest in

a bankruptcy discharge ‘does not rise to the same constitutional level’ as one’s

inability to dissolve his marriage except through the courts. 409 U.S. at 445. In this

case, appellants seek increased welfare payments. This interest, like that of Kras,

has far less constitutional significance than the interest of the Boddie appellants.”);

United States v. Kras, 409 U.S. 434, 445 (1973).

This case comes closest to falling in the Bearden line of cases. Plaintiff was

charged in her 2013 ticket with driving with a suspended license,15 a misdemeanor

offense. Ala. Code § 32-6-19(a)(1); (see Doc. # 7-21, at 2.) The Eleventh Circuit

has interpreted Griffin and Bearden to stand for the proposition that “heightened

scrutiny is triggered when the State alleviates punishment for some, but mandates

that it continue for others, based solely on account of wealth.” Jones, 950 F.3d at

15 The court takes judicial notice of the fact that Ms. Motley’s ticket accused her of driving

with a suspended license in violation of Ala. Code § 32-6-19. This fact is contained in the citation

record for Plaintiff’s June 18, 2013 ticket. It is not reasonably subject to dispute because both

Plaintiff and Defendant acknowledge this fact in their briefing. (Doc. # 21, at 7 (citing Doc. # 7-

21, at 2); Doc. # 16, at 7 (citing Doc. # 14-1, at 7, which is likewise a copy of the citation record).)

It can accurately and readily be determined from an official public record of Plaintiff’s ticket (a

charging document in state court litigation), whose accuracy cannot reasonably be questioned.

Fed. R. Evid. 201(b); Osheroff, 776 F.3d at 811–12 & n.4. Alternatively, the court may consider

this extrinsic document (Doc. # 7-21, at 2) because it is “(1) central to the plaintiff’s claim, and (2)

its authenticity is not challenged.” SFM Holdings, Ltd., 600 F.3d at 1337; see also Harris, 182

F.3d at 802 n.2.

819. However, Defendant correctly argues that “the suspension of Plaintiff’s license

is not the continuation of a punishment imposed at criminal sentencing” because

Plaintiff’s punishment was the imposition of a fine after being convicted of a traffic

offense. (Doc. # 29, at 2; Doc. # 1, ¶ 33, at 9.) The State is not currently punishing

Plaintiff for the traffic offense; it is depriving her “of a property interest—such as a

driver’s license—because of [her] inability to pay a fine associated with that

interest.” Fowler v. Johnson, No. CV 17-11441, 2017 WL 6379676, at *7 (E.D.

Mich. Dec. 14, 2017), rev’d and remanded on other grounds sub nom. Fowler v.

Benson, 924 F.3d 247 (6th Cir. 2019). Plaintiff is, therefore, in a different situation

from the Jones plaintiffs, whose original criminal sentences included the punishment

of disenfranchisement. See Jones, 950 F.3d. at 819–20.

Plaintiff has taken two somewhat contradictory positions on the question of

what type of sanction is at issue. She chiefly argues that Jones and Bearden govern

this case, implying that her license suspension is a criminal punishment, but she also

suggests that suspension under Rule 26.11(i)(3) is a form of civil contempt and is

governed by Turner v. Rogers, 564 U.S. 431 (2011). (Compare Doc. # 28 (arguing

that Jones is relevant authority), and Doc. # 21, at 9–17, with Doc. # 21, at 13; see

also Doc. # 21, at 10 n.5 (arguing that because licensees must pay their fines in full

to have their licenses reinstated, their suspensions “cannot be equated with the

alternatives a court may impose ‘in lieu of a fine’ like the payment plans or

community service identified in Bearden”).) Plaintiff has attempted to explain away

this contradiction by arguing that Turner expands Bearden to the civil contempt

context, but a closer evaluation suggests that these are separate lines of precedent.16

Turner is, first and foremost, a right-to-counsel case. Mr. Turner had been

imprisoned through a civil contempt proceeding for failing to pay child support.

Turner, 564 U.S. at 436. The central question was “whether the Due Process Clause

grants an indigent defendant, such as Turner, a right to state-appointed counsel at a

civil contempt proceeding, which may lead to his incarceration.” Id. at 441. The

Court held that there was no automatic right to counsel so long as “the opposing

parent or other custodian (to whom support funds are owed) is not represented by

counsel and the State provides alternative procedural safeguards equivalent to” the

following:

(1) notice to the defendant that his ‘ability to pay’ is a critical issue in

the contempt proceeding; (2) the use of a form (or the equivalent) to

elicit relevant financial information; (3) an opportunity at the hearing

for the defendant to respond to statements and questions about his

financial status (e.g., those triggered by his responses on the form); and

(4) an express finding by the court that the defendant has the ability to

pay.

Id. at 447–48.

16 This finding would stand even if the court considered Plaintiff’s expanded discussion

of this issue in her brief in support of her motion for a preliminary injunction. (Doc. # 4, at 20–

21, 22, 24–25, 30 n.21.)

In order to explain how civil contempt differs from criminal contempt (where

the defendants have a Sixth Amendment right to counsel), the Court quoted Hicks v.

Feiock, 485 U.S. 624, 638 n.9 (1988), for the principle that “[a] court may not impose

punishment ‘in a civil contempt proceeding when it is clearly established that the

alleged contemnor is unable to comply with the terms of the order.’” Id. at 442.

Plaintiff argues that this principle applies to her case. Examination of the cases cited

in Hicks in support of this principle reveals that this line of cases dates back to the

tenure of Chief Justice Taft and, more importantly, that the Hicks principle is not

grounded in equal protection doctrine. See Hicks, 485 U.S. at 638 n.9; United States

v. Rylander, 460 U.S. 752, 757 (1983); Shillitani v. United States, 384 U.S. 364, 371

(1966); Oriel v. Russell, 278 U.S. 358, 366 (1929) (quoting In re Epstein, 206 F.

568, 570 (E.D. Pa. 1913)). Mr. Turner’s ability to pay (one of many possible forms

of inability to comply) was a critical issue in his civil contempt proceeding under

state law and under this broader principle, not under the Equal Protection Clause.

See 564 U.S. at 436, 442.

Despite Turner’s “ability-to-pay” language, it is not clear that Turner is an

extension of Bearden; Turner appears to only define an alleged civil contemnor’s

due process rights. Plaintiff’s underdeveloped civil contempt theory may, for a

future plaintiff, be a more apt vehicle for attacking Rule 26.11(i)(3), as the Rule does

appear to create some form of civil penalty. But because this appears to be a due

process theory, Plaintiff’s attempt to argue it is untimely. See supra Part V.D.

Returning to the Jones equal protection analysis, Jones notes that Griffin’s

equality principle (and, accordingly, heightened scrutiny) “has been applied to state

action that burdens important constitutional interests, such as fundamental

associational and political participation interests.” Jones, 950 F.3d at 820. The

continued possession of a driver’s license is unquestionably an important interest for

most Alabamians. Plaintiff’s suspended license impairs her ability to secure and

retain employment, apply for housing, cash checks, and access medical care. (Doc.

# 1, ¶¶ 35–36, at 9.) But the continued possession of a driver’s license is not an

“important constitutional interest” on the same plane as imprisonment and criminal

punishment, disenfranchisement, the inability to access criminal judicial processes,

or the deprivation of family rights. Applying heightened scrutiny to Rule 26.11(i)(3)

is not warranted.

ii. Walker’s “Absolute Deprivation” Test (Jones Step 1.5)

Notably, the parties’ heightened scrutiny arguments did not focus on context

and instead focused on Walker’s discussion of a line of dicta in San Antonio

Independent School District v. Rodriguez, 411 U.S. 1 (1973). Walker’s summary of

Rodriguez suggests a different test for when heightened scrutiny applies to a wealth

discrimination claim:

Analyzing prior cases, with a focus on Bearden’s antecedents, the

[Supreme] Court concluded that instances where wealth-based

distinctions were impermissible “shared two distinguishing

characteristics: because of their impecunity[, indigent persons] were

completely unable to pay for some desired benefit, and as a

consequence, they sustained an absolute deprivation of a meaningful

opportunity to enjoy that benefit.”

Walker, 901 F.3d at 1261 (quoting Rodriguez, 411 U.S. at 20).

Rodriguez involved a challenge to Texas’s system of funding primary and

secondary education in part through local property taxes, which resulted in wealth-

based disparities in local education budgets. Rodriguez, 411 U.S. at 15–16.

Rodriguez’s reference to an “absolute deprivation” introduced a discussion of cases,

including Griffin, Douglas v. California (372 U.S. 353 (1963)), Williams, Tate, and

Bullock, where indigent individuals were absolutely deprived of their rights to access

court processes in criminal trials and appeals, to have appointed counsel on direct

appeal in a criminal case, to not be imprisoned for failure to pay a fine, and to run

for elected office. Id. at 21–22. The Court in Rodriguez held that there was no

suspect classification at issue. Id. at 28. The Court was also skeptical of the idea

that a fundamental constitutional right to an education existed, but avoided deciding

that issue because the disparate budgets represented a diminishment, not an absolute

deprivation, of the alleged “right” to an education. Id. at 36–37 (“Even if it were

conceded that some identifiable quantum of education is a constitutionally protected

prerequisite to the meaningful exercise of either right, we have no indication that the

present levels of educational expenditures in Texas provide an education that falls

short. Whatever merit appellees’ argument might have if a State’s financing system

occasioned an absolute denial of educational opportunities to any of its children, that

argument provides no basis for finding an interference with fundamental rights

where only relative differences in spending levels are involved . . . .”).

Walker does not clearly explain that the Rodriguez “test” is a necessary but

not a sufficient condition for heightened scrutiny in a wealth discrimination case.

The Jones panel made no mention of this section of Rodriguez or of Walker’s

emphasis on it, despite citing both cases. The logical explanation for this seeming

disconnect is that there are two necessary conditions that must be satisfied before a

wealth discrimination claim merits heightened scrutiny. Each case focused on the

necessary condition that was in doubt while omitting discussion of the necessary

condition that was obviously satisfied. Walker turned upon the distinction between

absolute and relative deprivation because the constitutional interest at issue had

previously been recognized in Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir.

1978). Jones turned upon whether the “desired benefit” was constitutionally

important enough to merit an exception, because the plaintiffs had unquestionably

suffered an absolute deprivation of their rights to vote.

Walker’s absolute deprivation test functions as a Jones Step 1.5. Defendant

argues that Ms. Motley and other individuals with similar suspensions are not

absolutely deprived of their licenses because it is possible that they may obtain and

complete payment plans. But this assertion runs afoul of the Rodriguez Court’s

statement that Williams involved an absolute deprivation. The appellant in that case

was incarcerated to work off his monetary obligations at a rate of $5 per day.

Williams, 399 U.S. at 236. Because of this system, Mr. Williams was more likely to

eventually “pay” his debt and receive his “desired benefit” than Ms. Motley, whose

future ability to pay cannot be certain. Because Plaintiff has no certain end date to

her deprivation, this case cannot be analogous to Walker, where the indigent person

was guaranteed an opportunity to argue for his or her “desired benefit” of relief on

a recognizance bond within forty-eight hours after detention. If Mr. Williams was

absolutely deprived, so is Ms. Motley, and Walker’s necessary condition is satisfied.

But because her desired benefit is not an important constitutional interest,

proceeding to Jones’s second step, analyzing the Rule along Bearden’s four factors,

is inappropriate. Instead, the proper approach is to determine whether the Rule

survives rational basis review.

b. Rational Basis Review

Under rational basis review,17 a law must be rationally related to a legitimate

governmental interest, and it “must be upheld against equal protection challenge if

17 In Jones, the Eleventh Circuit conducted two rational basis analyses: one analyzing the

challenged rule as applied to the plaintiffs at bar who were genuinely unable to pay and one

there is any reasonably conceivable state of facts that could provide a rational basis

for the classification” between persons. F.C.C. v. Beach Commc’ns, Inc., 508 U.S.

307, 313 (1993). While not “toothless,” rational basis review is highly deferential

to governmental action. Schweiker v. Wilson, 450 U.S. 221, 234 (1981) (quoting

Mathews v. Lucas, 427 U.S. 495, 510 (1976)). When reviewing a statute for

rationality, a court must ask “whether there is any rational basis for the law, even if

the government’s proffered explanation is irrational, and even if it fails to offer any

explanation at all.” Jones, 950 F.3d at 809. “[T]he varying treatment of different

groups or persons” must be “so unrelated to the achievement of any combination of

legitimate purposes that [one] can only conclude that the legislature’s actions were

irrational.” Vance v. Bradley, 440 U.S. 93, 97 (1979).

“The question [to] ask is whether the legislature could have conceived of a

rational basis for the classification it drew.” Jones, 950 F.3d at 809. “[A] legislative

choice is not subject to courtroom factfinding and may be based on rational

speculation unsupported by evidence or empirical data.” Beach Commc’ns, Inc.,

analyzing the challenged rule as applied to the whole class of felons whom it affected. The court

found that the law failed rational basis review with respect to the former group because

disenfranchisement did not increase the likelihood of repayment. However, the court found that

the law passed rational basis review with regard to the latter group because those plaintiffs had not

shown that the class as a whole had similar financial constraints. Jones, 950 F.3d at 809–17. This

portion of the court’s opinion is not binding because the panel found that heightened scrutiny

applied, and it invalidated the challenged law on that basis. Id. at 817–28. The Jones analysis is

additionally distinguishable because Ms. Motley has disclaimed all right to bring an as-applied

challenge and is only bringing a facial challenge to this Rule. (Doc. # 21, at 22–24.) Therefore,

one broad rational basis analysis has been conducted in this case.

508 U.S. at 315. Plaintiff must show that the facts do not support the classification

and that “the legislative facts on which the classification is apparently based could

not reasonably be conceived to be true by the governmental decisionmaker.”

Bradley, 440 U.S. at 110–11.

As the party challenging the lawfulness of the legislative classification,

Plaintiff bears the burden of making a plausible showing of irrationality. Statutes

that do not draw lines based on suspect classes or burden fundamental rights bear “a

strong presumption of validity, and those attacking the rationality of the legislative

classification have the burden ‘to negative every conceivable basis which might

support it.’” Beach Commc’ns, Inc., 508 U.S. at 314–15 (quoting Lehnhausen v.

Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)) (internal citation omitted).

Defendant has offered the following justification for the State’s wealth-based

classification:

This rule is rationally related to the government’s legitimate purpose in

enforcing the collection of fines, restitution, and court costs incurred

with traffic tickets issued for traffic infractions. This, of course, is

related to the State’s larger purpose in protecting public safety

th[r]ough enforcing the rules of the road. The sanction of the

suspension of a driver[’s] license for failure to pay traffic tickets is a

powerful incentive for a motorist to pay fines and costs incurred in a

traffic offense.

(Doc. # 16, at 26.)

Defendant also argues that the harsh consequences of the Rule are mitigated

somewhat when “read in conjunction with Rule 26.11(a) and (d)” which, in

Defendant’s view,18 “expressly require courts to consider a defendant’s financial

resources and to determine whether a defendant should be allowed to pay a monetary

fine in installments and what length of time should be allowed for payment.” (Doc.

# 16, at 26); see Ala. R. Crim. P. 26.11(a) (“The financial resources and obligations

of the defendant and the burden that payment of restitution will impose should be

considered in determining how much restitution is to be paid or collected, i.e.,

whether to be paid by installments and what length of time should be given for

payment.”); Ala. R. Crim. P. 26.11(d) (“If the defendant cannot pay the costs, fine,

and/or restitution immediately after pronouncement of the sentence as preferred, the

court may permit payment of the costs, fine, and/or restitution, at some later date, or

in specified installments.”); see also Ala. R. Crim. P. 26.11(b), 26.11(b)(2)–(3)

(“[I]n determining whether to impose a fine, the court should consider: . . . (2) The

financial resources and obligations of the defendant and the burden that payment of

a fine will impose; [and] (3) The ability of the defendant to pay a fine forthwith on

an installment basis or on other conditions to be fixed by the court . . . .”). Defendant

argues that “[t]hese rules of procedure adequately balance the State’s interest in

18 See supra note 4 and accompanying text (finding that “[t]he words should and may,

when read in their ordinary sense, mean that courts are not required to consider the indigency of

the defendant in deciding whether to impose a fine or in determining why a fine has not been

paid”).

enforcing traffic fines with fairness to indigent defendants and thus satisfy rational

basis review.” (Doc. # 16, at 26.)

Plaintiff responds that the Rule lacks a rational basis because “‘there is no

empirical evidence suggesting that people comply with requirements because their

driving privilege was suspended’—let alone that such license suspension policies

result in increased collections from indigent persons.” (Doc. # 21, at 12 (emphasis

in original) (quoting Doc. # 7-17, at 16).) She also argues that research supports the

view that license suspensions for non-compliance with court requirements detract

from public safety and lack rehabilitative or deterrent value. (Doc. # 21, at 12–13

(first citing Doc. # 7-17 at 9, 16, 19–20 and then citing Doc. # 7-18, at 9).)19

Rational basis review can include consideration of possible explanations not

offered by the State. Beach Commc’ns, Inc., 508 U.S. at 315; Jones, 950 F.3d at

809. In their appellate brief in Mendoza v. Strickler, the officials representing the

Oregon State government offered a persuasive rationale for why this type of policy

is rational even when applied to indigent persons. “Where a state’s primary means

19 It need not be decided whether the extrinsic documents Plaintiff cites can be considered

at the 12(b)(6) stage, because even with their consideration, Plaintiff would not prevail on this

issue. Plaintiff’s pincites have been adjusted to reflect the CM/ECF page numbers.

This finding would stand even if the court considered Plaintiff’s expanded discussion of

this issue in her brief in support of her motion for a preliminary injunction. (Doc. # 4, at 29–31

(arguing that the Rule is irrational because suspending licenses for nonpayment hurts suspended

persons’ employment prospects and, thus, their abilities to repay their fines and arguing that people

who are too poor to pay cannot be coerced into paying money that they do not have and cannot

obtain).)

of ensuring compliance with traffic laws is financial penalties, a driver who has no

means of paying those penalties—that is, someone who has no wages to garnish, no

tax refunds to offset, and no ability to obtain credit regardless of outstanding traffic

debts—suffers little practical consequence for violating traffic laws. For such

drivers, one reasonable way to deter violations is a non-financial penalty such as

license suspension.” Brief for Appellees, Mendoza v. Strickler, No. 19-35506, 2019

WL 6351532, at *35–36 (9th Cir. Nov. 20, 2019) (internal citation omitted).

As far as this court is aware, all but one federal court to consider this question

has found that such policies pass rational basis review. Courts have generally

reached this conclusion because, even assuming that these practices are not good

policy, “[m]isguided laws may nonetheless be constitutional.” Fowler, 924 F.3d at

263 (quoting James v. Strange, 407 U.S. 128, 133–34 (1972)), aff’g on this ground,

rev’g on other grounds sub nom. Fowler v. Johnson, No. CV 17-11441, 2017 WL

6379676 (E.D. Mich. Dec. 14, 2017); see also id. at 262–63 (“By imposing greater

consequences for violating traffic laws, the state increases deterrence for would-be

violators. The state also has legitimate interests in promoting compliance with court

orders and in collecting traffic debt. . . . Michigan’s choice to wield the cudgel of

driver’s-license suspension for nonpayment of court debt dramatically heightens the

incentive to pay. Such a policy is rationally related to ‘the government’s interest in

prompt assessment and collection of civil penalties.’” (quoting Blackhawk Mining

Co. v. Andrus, 711 F.2d 753, 757 (6th Cir. 1983))); Johnson, 381 F. Supp. 3d at 631

(“Revocation of driver’s licenses for failure to pay traffic violation fines or costs

serves . . . to impos[e] a motivation to accomplish what an individual might

otherwise be disinclined to do — here, to pay the fines and costs properly imposed

on traffic defendants.” (alteration in original) (citation and internal quotation marks

omitted)); Mendoza v. Garrett, 358 F. Supp. 3d 1145, 1174–75 (D. Or. 2018)

(“Fines, therefore, are rationally related to enforcement of traffic laws and to the

deterrence of continued violations. The sting of paying a fine will hopefully prevent

future unsafe driving practices. Even those who can pay the fine likely do not desire

to part with their money for this reason. Methods by which the state can enforce

compliance with the fine requirement, therefore, are rationally related to the safety

goal. Without a compliance mechanism, the fine is toothless and without deterrent

effect. Accordingly, fines are reduced to a judgment, subject to payment or

collection by a number of methods, and eventually or additionally, can result in the

violator’s license suspension if the fine is unpaid.”). But see Robinson, 326 F.R.D.

at 154–59, abrogated by Fowler, 924 F.3d at 263.

The reasoning of those cases is persuasive. Even assuming it is not, the

Eleventh Circuit has likewise held that a government policy can survive rational

basis review even when it “may not be the best method—or may even be a poor

one—for achieving [the government’s] goal,” so long as “it is still rational to think

that the challenged [policy] would advance the government’s stated purpose.” Cook

v. Bennett, 792 F.3d 1294, 1301 (11th Cir. 2015) (reaching the same result under due

process rational basis review and under the “essentially equivalent” standards of

equal protection rational basis review). While license suspension for nonpayment

of traffic fines may not be the best way (and may even be a poor way) to accomplish

the state’s goals, the challenged Rule is facially constitutional because it is rationally

related to the State’s legitimate interests in collecting fines, protecting public safety,

and deterring traffic violations, even if it visits harsher consequences on indigent

persons. Plaintiff has not made a plausible showing that “the legislative facts on

which the classification is apparently based could not reasonably be conceived to be

true by the governmental decisionmaker.” See Bradley, 440 U.S. at 111.

2. Procedural Due Process

Plaintiff alleges that that Defendant’s enforcement of Rule 26.11(i)(3)

violated her due process rights in four ways: 1) “[n]either the court nor ALEA gave

her notice that her driver’s license could be suspended for nonpayment,” 2)

“[n]either the court nor ALEA gave her notice . . . that her ability to pay is a critical

issue in determining the appropriateness of suspension,” 3) “[n]either the court nor

ALEA . . . conducted an ability to pay hearing prior to the suspension,” and 4) her

license has been suspended without a finding that she had the ability to pay. (Doc.

# 1, at 9.) She argues that Rule 26.11(i)(3) is facially unconstitutional because it

authorizes suspensions without requiring the State to provide these protections. The

Fourteenth Amendment provides that no State can “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV. “In this

circuit, a § 1983 claim alleging a denial of procedural due process requires proof of

three elements: (1) a deprivation of a constitutionally-protected liberty or property

interest; (2) state action; and (3) constitutionally-inadequate process.” Grayden v.

Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

“Suspension of issued licenses . . . involves state action that adjudicates

important interests of the licensees. In such cases the licenses are not to be taken

away without that procedural due process required by the Fourteenth Amendment.”

Bell v. Burson, 402 U.S. 535, 539 (1971); see also Dixon v. Love, 431 U.S. 105, 112

(1977). The parties agree that Plaintiff has a property interest in her driver’s license.

(See Doc. # 16, at 27; Doc. # 21, at 27 (citing Bell, 402 U.S. at 542).) “We thus

consider whether the procedure used was constitutionally adequate.” Evans v.

Rhodes, 735 F. App’x 986, 988 (11th Cir. 2018).

Notice and hearing are distinct features of due process and are governed by

different legal standards, but under either standard, Plaintiff was not deprived of due

process.

a. Notice

“An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.” Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950). The means employed must be those

that would be used by one “desirous of actually informing” the interested party; a

“mere gesture” is insufficient. Id. at 315. Plaintiff alleges that Defendant’s

enforcement of Rule 26.11(i)(3) inflicted two separate notice-related injuries:

Defendant failed to notify her that 1) her ability to pay is a critical issue in

determining the appropriateness of suspension and 2) that her license could be

suspended for nonpayment.

“Plaintiff[’s] characterization of the” former notice injury “is founded upon

an assumption that there is a constitutional right to an indigency determination in the

first place and that the rights implicated by the suspensions are” important “in a

constitutional sense.” Mendoza, 358 F. Supp. 3d at 1179. Because the Equal

Protection Clause does not require the State to consider Plaintiff’s ability to pay

when determining the appropriateness of suspension, Plaintiff is not entitled to be

notified of a non-existent right.

However, Plaintiff’s second notice injury is not intertwined with her equal

protection argument. Plaintiff was due some form of notice that she could be

deprived of her property interest for not paying her traffic fines. However, this claim

is time-barred. See supra Part V.C.

If this claim were timely, it remains unmeritorious because Plaintiff had

statutory notice that her license could be suspended for nonpayment. See Reams v.

Irvin, 561 F.3d 1258, 1264–65 (11th Cir. 2009) (“For one hundred years, the

Supreme Court has declared that a publicly available statute may be sufficient to

provide [constitutionally adequate] notice because individuals are presumptively

charged with knowledge of such a statute.” (alteration in original) (quoting Grayden

v. Rhodes, 345 F.3d 1225, 1239 (11th Cir. 2003))); see also Grayden v. Rhodes, 345

F.3d 1225, 1239 (11th Cir. 2003) (collecting cases). Plaintiff is presumptively

charged with knowledge of Rule 26.11’s relevant provisions: that her license was

subject to suspension if she failed to pay her fines and costs, that the judge at her

liability hearing should consider her ability to pay, and that he or she should consider

whether to allow payment on a delayed or installment basis. See Atkins v. Parker,

472 U.S. 115, 130–31 (1985). The failure of this notice to inform Plaintiff of her

rights to a hearing is only unconstitutional if Plaintiff has such a right, which is a

separate issue. See infra Part V.F.2.b. If Plaintiff’s non-Bearden notice claim were

timely, it would still be subject to dismissal on the merits.

b. Opportunity to be Heard

Plaintiff claims that she was injured because Rule 26.11(i)(3) authorizes

suspensions without requiring the State to conduct an ability-to-pay hearing and/or

to make a finding that she was able to pay prior to her suspension, and the State did

not take either action. It has already been established that Plaintiff’s license could

not be taken away without due process, and “[t]he fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v.

Manzo, 380 U.S. 545, 552 (1965)). But “due process is flexible and calls for such

procedural protections as the particular situation demands.” Morrissey v. Brewer,

408 U.S. 471, 481 (1972). The adequacy of the opportunity to be heard is governed

by weighing the three factors set forth in Mathews:

First, the private interest that will be affected by the official action;

second, 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 finally, the Government’s

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.

424 U.S. at 335.

The Supreme Court has held that a “driver’s interest . . . in continued

possession and use of his license . . . . is a substantial one.” Mackey v. Montrym,

443 U.S. 1, 11 (1979). As stated in a similar case, there are “no reason[s] to doubt

Plaintiff[’s] contention that, for many” Alabamians, “the loss of a driver’s license

negatively impacts individuals’ ability to get to work, make doctor’s appointments,

go grocery shopping, and more.” Johnson, 381 F. Supp. 3d at 639. So even though

this interest is not constitutionally important, it is important to individual licensees.

Plaintiff’s claim that she was unconstitutionally deprived of an opportunity to

be heard on the issue of her indigency fails because Mathews’s second factor, the

risk of erroneous deprivation, is wholly absent. Because Plaintiff’s “indigency is

not relevant to the State’s underlying decision to suspend [her] license[], . . . giving

[her] a hearing—or any other procedural opportunity—where [she] can raise [her]

indigency would be pointless. Such a procedure would do nothing to prevent the

‘the risk of erroneous deprivation.’” Fowler, 924 F.3d at 259 (quoting Mathews,

424 U.S. at 335).

This case is somewhat analogous to Dixon v. Love, where the appellee’s

Illinois driver’s license was automatically revoked after receiving his third license

suspension in ten years. See 431 U.S. at 117 (Stevens, J., concurring). As in Dixon,

Plaintiff “had the opportunity for a full judicial hearing in connection with each of

the traffic convictions on which the . . . decision was based.” Id. at 113. Because

Plaintiff “does not dispute the factual basis” for the decision to suspend her license

for nonpayment, she “is really asserting the right to appear in person only to argue

that” the Secretary or a court “should show leniency and depart from [their] own

regulations. Such an appearance might make the licensee feel that [s]he has received

more personal attention, but it would not serve to protect any substantive rights.” Id.

at 114.

“The second Mathews factor also looks at the probative value, if any, of

additional or substitute procedural safeguards.” Mendoza, 358 F. Supp. 3d at 1180.

The ability-to-pay hearing Plaintiff requests or, for that matter, any additional or

substitute procedural safeguards that focused on ability-to-pay “would be unlikely

to have significant value in reducing the number of erroneous deprivations,” see

Dixon, 431 U.S. at 114, when it is not erroneous for the State to fail to consider

ability-to-pay.20

20 The District of Oregon has published a persuasive explanation on the low risk of

erroneous deprivation.

There is little risk of erroneous deprivation given that the suspensions are triggered

by the objective fact of nonpayment of the fines. Mackey v. Montrym, 443 U.S. 1,

13 (1979) (upholding license suspension based on “objective facts either within the

personal knowledge of an impartial government official or readily ascertainable by

him”) . . . . I understand Plaintiffs’ position that the risk of erroneous deprivation

is high under the procedures currently used because absent the opportunity to

establish indigency, Plaintiffs’ fundamental rights will be wrongfully deprived.

But, Plaintiffs’ characterization of the deprivation is founded upon an assumption

that there is a constitutional right to an indigency determination in the first place

and that the rights implicated by the suspensions are fundamental in a constitutional

sense. As stated previously, I disagree with Plaintiffs on this point. I do not intend

my conclusion to suggest that I am blind to the fundamental effect that driver’s

license suspensions for nonpayment of traffic debt have on Plaintiffs’ lives. I do

not underestimate the adverse effects on their employment opportunities,

recreational opportunities, access to medical care, and more. But, for the reasons

previously explained, I do not find support in the caselaw for concluding that the

“Finally, the government has a strong interest in enforcing traffic fines to deter

continuing traffic violations.” Mendoza, 358 F. Supp. 3d at 1180. “[T]he Supreme

Court has specifically recognized in the driver’s license revocation context that ‘the

substantial public interest in administrative efficiency would be impeded by the

availability of a pretermination hearing in every case.’” Johnson, 381 F. Supp. 3d

at 644 (quoting Dixon, 431 U.S. at 114); see also Mackey, 443 U.S. at 18 (noting

that increasing the number of presuspension hearings would “impose a substantial

fiscal and administrative burden on the Commonwealth”).

This is not to say that Alabama licensees may not be due some opportunity to

be heard on the question of whether their driver’s licenses should be suspended

pursuant to Rule 26.11(i)(3). Indeed, Bell suggests that “except in emergency

situations . . . due process requires that when a State seeks to terminate an interest

such as [suspending a driver’s license], it must afford ‘notice and opportunity for

hearing appropriate to the nature of the case’ before the termination becomes

effective.” 402 U.S. at 542 (quoting Mullane, 339 U.S. at 313). The Supreme Court

allowed the State of Illinois to forgo a pre-deprivation hearing in Dixon because the

drivers at issue posed a clear danger to public safety, which merited their immediate

rights they assert have been recognized as “constitutionally fundamental.” Thus,

Plaintiffs’ articulation of the risk of erroneous deprivation is misplaced.

Mendoza, 358 F. Supp. 3d at 1179 (internal citation and footnote omitted).

removal from public roads. See Dixon, 431 U.S. at 114–15. But such drivers were

entitled to a full evidentiary hearing upon request after their licenses were revoked.

Id. at 109. In light of this caselaw, it is possible that Alabama licensees are at least

due a process akin to the informal administrative review that Oregonians receive

after their licenses have been suspended under a similar policy. See Mendoza, 358

F. Supp. at 1153; see also Ala. Code § 32-5A-195(l), (q) (providing hearing rights

to individuals whose licenses have been revoked or suspended by the Secretary of

ALEA for one of the authorized reasons listed in that code section); Burlison, 311

F. App’x at 209 (holding that due process was satisfied where the appellant “was

told that he could request an administrative hearing to challenge the suspension”).

The State’s current policy is not wholly lacking in procedural safeguards. The

fine is not imposed until the defendant has been convicted of a traffic violation by a

court. And the revised ticket language informs each recipient that “[i]f you cannot

pay any monetary judgment against you in 60 days, you may apply to the court to

request payment of a monetary judgment in installments. You must obtain a court

order approving an installment plan and provide proof of financial responsibility and

such an order” to ALEA within 60 days after judgment is entered to prevent a license

suspension. Ala. R. Jud. Admin. 19, Attachment One. The State’s instruction that

a defendant may “apply to the court” for a payment plan does provide some guidance

for how a defendant may be heard on his or her ability to pay a fine, even though it

was not provided to Ms. Motley.

But the question of what other type of process might be “appropriate to the

nature of the case” has not been squarely presented in this complaint. (See, e.g.,

Doc. # 1, ¶ 22, at 7 (“There are no provisions for post-suspension process to contest

the erroneous suspension of a driver’s license because a person could not afford to

pay the ticket.”).) Plaintiff has offered no other considerations aside from ability-

to-pay that require an opportunity to be heard, and any due process claim divorced

from her Bearden claim would be untimely. See also supra Part V.F.1.a.1.

(discussing why Plaintiff’s Turner theory is untimely).

Ultimately, Plaintiff is not due an opportunity to be heard on her ability to pay

nor is she due to receive an express finding of whether her nonpayment was willful.

All of Plaintiff’s claims fail on the merits.

VI. CONCLUSION

It is therefore ORDERED that the motion to dismiss (Doc. # 14) is

GRANTED and that this action is DISMISSED with prejudice. Plaintiff’s motions

for class certification (Doc. # 5) and for a preliminary injunction (Doc. # 3) are

DENIED as moot.

Final judgment will be entered separately.

DONE this 31st day of March, 2020.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE