Thomas v. Haslam (329 F. Supp. 3d 475, 2018)

ALETA A. TRAUGER, United States District Judge

Before the court are a Motion for Summary Judgment (Docket No. 61) filed by the sole remaining defendant in this case, the Commissioner of the Tennessee Department of Safety and Homeland Security ("TDSHS"), David W. Purkey, as well as a Motion for Summary Judgment (Docket No. 37) filed by the plaintiffs, James Thomas and David Hixson. For the reasons set forth herein and in the court's preliminary Memorandum of March 26, 2018 (Docket No. 93) ("First Memorandum" ), the plaintiffs' Motion will be granted and Purkey's Motion will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

A person convicted of a crime in Tennessee is typically made liable, to the government, for various sums of money related to his prosecution. Some of the defendant's debt may reflect fines imposed as part of his sentence, but Tennessee also holds a convicted defendant liable for additional, often substantial, amounts in the form of costs assessed against him and taxes imposed on litigants by the Tennessee General Assembly. See Tenn. Code Ann. § 40-35-104(c)(1) ; Tenn. Code Ann. § 40-25-123(a) ; Tenn. Code Ann. § 67-4-602(a). If the defendant does not pay these fines, costs, and litigation taxes-also known as "court debt"-then local authorities can attempt to collect on the debt using the ordinary tools available to judgment creditors, such as garnishment of wages or execution on property. Tenn. Code Ann. § 40-24-105(a) ; Tenn. R. Civ. P. 69.05 - .07 ; see Tenn. Op. Att'y Gen. No. 06-135 (Aug. 21, 2006). Sometimes those tools may be effective; sometimes they may not. In particular, when a defendant has little or no income or assets, garnishment and execution will be of little use, because no tool is sufficient to collect from resources that do not exist. The fact that it is difficult to collect debts from very poor debtors is a reality faced by people and entities, both public and private, in a wide array of circumstances; indeed, it is a problem as old, presumably, as debt itself.

Failure to pay court debt, however, has consequences that failing to pay other debt does not. In particular, TDSHS, by statute, revokes the driver's license of any person who, like Thomas and Hixson, has failed to pay court debt for a year or more, unless that person is granted a form of discretionary relief by a court. See Tenn. Code Ann. § 40-24-105(b). The details of the plaintiffs' individual cases, as well as Tennessee's system for administering court debt, can be found in the First Memorandum. In short, Thomas and Hixson both live in severe poverty and both owe court debt related to past criminal convictions. Thomas is totally and permanently disabled. Hixson has spent time in recent years living in a homeless shelter after a period of incarceration. Each man struggles to afford the basic necessities of life and is unable to pay the court debt assessed against him. Because they failed to pay their court debt for over a year, Thomas and Hixson have both had their driver's licenses revoked by TDSHS.

In contrast, a Tennessee driver with a criminal record identical to Thomas's or Hixson's-but with the material resources to pay his court debt-could have avoided revocation simply by making the payments that the plaintiffs cannot. The plaintiffs have challenged this scheme-not because they believe that they should be released from the debt that they owe or because they dispute the government's right to impose aggressive sanctions on those who owe court debt that they can but refuse to pay-but because Tennessee's system has the actual effect of imposing a harsher punishment on indigent defendants than on non-indigent defendants based solely on their economic circumstances. A non-indigent defendant has a choice: pay or lose his license. Drivers like Thomas and Hixson, they argue, have no such choice. The plaintiffs challenge this differential treatment as unconstitutional pursuant to 42 U.S.C. § 1983.

Thomas and Hixson filed their class action Complaint on January 4, 2017. (Docket No. 1.) Shortly thereafter, they filed a motion asking the court to certify a class defined as follows:

All persons whose Tennessee driver's licenses have been or will be revoked pursuant to Tenn. Code Ann. § 40-24-105(b), and who, at the time of the revocation, cannot or could not pay Court Debt due to their financial circumstances.

(Docket No. 6 at 2.) The court granted that motion on March 26, 2018, and Thomas and Hixson now represent a statewide class of similarly situated plaintiffs. (Docket No. 94.) That class challenges the constitutionality of Tennessee's court debt-based revocation scheme on three grounds: first, for violation of criminal defendants' due process and equal protection rights by the "mandatory revocation of people's driver's licenses because they are too poor to pay Court Debt without any inquiry into their ability to pay" (Docket No. 1 ¶ 100); second, for violation of their due process right to notice and a hearing on whether they can pay their court debt (Id. ¶ 101); and, third, for violation of equal protection based on Tennessee's policy of revoking the licenses of court debtors and not other similarly situated debtors (Id. ¶ 102). Purkey filed a Motion to Dismiss (Docket No. 23) and a Motion for Summary Judgment (Docket No. 61), arguing that (1) the court was barred from considering the plaintiffs' claims under the Rooker - Feldman doctrine and (2) Purkey was entitled to summary judgment on the merits. The plaintiffs also filed a Motion for Summary Judgment. (Docket No. 37.) In the First Memorandum and the accompanying Order, the court denied the Motion to Dismiss, resolved most of the issues underlying the Motions for Summary Judgment, and ordered supplemental briefing on a few outstanding evidentiary matters. (Docket Nos. 93 & 94.) That briefing having been completed, the court is prepared to rule on whether either party is entitled to summary judgment.

II. LEGAL STANDARD

Rule 56 requires the court to grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To win summary judgment as to the claim of an adverse party, a moving defendant must show that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim. Once the moving defendant makes his initial showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren , 578 F.3d 351, 374 (6th Cir. 2009) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conversely, to win summary judgment as to its own claims, a moving plaintiff must demonstrate that no genuine issue of material fact exists as to all essential elements of her claims. "In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party." Moldowan , 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

At this stage, "the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient," and the party's proof must be more than "merely colorable." Anderson , 477 U.S. at 249, 106 S.Ct. 2505. An issue of fact is "genuine" only if a reasonable jury could find for the non-moving party. Moldowan , 578 F.3d at 374 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).

III. ANALYSIS

A. Issues Resolved in the First Memorandum

In the First Memorandum and the accompanying Order, the court denied Purkey's Motion to Dismiss but concluded that some outstanding factual and evidentiary issues stood in the way of resolving the Motions for Summary Judgment. The court, however, did rule on a number of underlying legal issues key to the case. Specifically, the court held as follows :

1. The plaintiffs' claims are not barred by the Rooker - Feldman doctrine, because the plaintiffs challenge only TDSHS's imposition of one particular post-judgment collection mechanism, not any aspect of the plaintiffs' convictions or the validity of their court debt. See Todd v. Weltman, Weinberg & Reis Co., L.P.A. , 434 F.3d 432, 437 (6th Cir. 2006). (First Memorandum at 18-24.)

2. Under a long and well-established line of Supreme Court precedents, a statute that penalizes or withholds relief from a defendant in a criminal case, based solely on his nonpayment of a particular sum of money and without providing for an exception if he is willing but unable to pay, is the constitutional equivalent of a statute that specifically imposes a harsher sanction on indigent defendants than on non-indigent defendants. See Griffin v. Illinois , 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed. 891] (1956) ; Douglas v. California , 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811] (1963) ; Roberts v. LaVallee , 389 U.S. 40 [88 S.Ct. 194, 19 L.Ed.2d 41] (1967) ; Williams v. Illinois , 399 U.S. 235 [90 S.Ct. 2018, 26 L.Ed.2d 586] (1970) ; Tate v. Short , 401 U.S. 395 [91 S.Ct. 668, 28 L.Ed.2d 130] (1971) ; Mayer v. City of Chicago , 404 U.S. 189 [92 S.Ct. 410, 30 L.Ed.2d 372] (1971) ; Bearden v. Georgia , 461 U.S. 660 [103 S.Ct. 2064, 76 L.Ed.2d 221] (1983). In other words, the Supreme Court has held that the Constitution "addresses itself to actualities," Griffin , 351 U.S. at 22 [76 S.Ct. 585] (Frankfurter, J., concurring in judgment), and, therefore, is not blind to the commonsense fact that an ultimatum following the formula of "the money or your _____" is a different proposition for someone who has the money than for someone who does not. (First Memorandum at 25-30, 37-38.)

3. The Supreme Court has held that the Griffin line of cases implicates both Due Process and Equal Protection principles in ways that defy an easy application of the Court's more general precedents involving either constitutional guarantee alone. See Bearden , 461 U.S. at 665-66 [103 S.Ct. 2064]. Accordingly, the Court has warned against resorting to the "easy slogans" and "pigeonhole analysis" associated with the rote sorting of cases into those involving either strict scrutiny or rational basis scrutiny. Id. at 666 [103 S.Ct. 2064]. (First Memorandum at 30-34.)

4. Nevertheless, the law of the Sixth Circuit is that distinctions based on economic circumstances are subject only to rational basis review unless they involve a fundamental right. See Molina-Crespo v. U.S. Merit Sys. Prot. Bd. , 547 F.3d 651, 660 (6th Cir. 2008) (citing San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 29 [93 S.Ct. 1278, 36 L.Ed.2d 16] (1973) ). Furthermore, the Sixth Circuit has held that, while the rights to inter- and intrastate travel are fundamental rights, the right to drive a motor vehicle is not. See League of United Latin Am. Citizens v. Bredesen , 500 F.3d 523, 534 (6th Cir. 2007) (citing Saenz v. Roe , 526 U.S. 489, 500 [119 S.Ct. 1518, 143 L.Ed.2d 689] (1999) ; Johnson v. City of Cincinnati , 310 F.3d 484, 494-98 (6th Cir. 2002) ). Accordingly, this court is bound to consider this case under rational basis review, which asks only whether the challenged policy is rationally related to a legitimate government purpose. See Midkiff v. Adams Cty. Reg'l Water Dist. , 409 F.3d 758, 770 (6th Cir. 2005). (First Memorandum at 36.)

5. The Sixth Circuit has recognized, however, that the application of rational basis review to distinctions based on indigence may call for a more searching inquiry if the challenged scheme is one that not only treats indigent people more harshly than the non-indigent, but also does so in a way that threatens to exacerbate the indigents' poverty. See Johnson v. Bredesen , 624 F.3d 742, 749 (6th Cir. 2010) (discussing James v. Strange , 407 U.S. 128 [92 S.Ct. 2027, 32 L.Ed.2d 600] (1972) ). In other words, if a statute treats the rich better than the poor in a way that will affirmatively make the poor poorer , then the court should-though still not departing from the boundaries of rational basis review-take extra care to make sure that the minimum requirements of rationality are met. (First Memorandum at 33-34.)

6. The State of Tennessee, its courts, and its local governments have a legitimate interest in collecting court debt. See Sickles v. Campbell Cty., Ky. , 501 F.3d 726, 731 (6th Cir. 2007) (noting government interests in "sharing the costs of incarceration and furthering offender accountability").

While that interest may be reframed and subdivided in many ways, the core premise is that, once the government lawfully imposes a debt that is itself supported by a legitimate purpose, then the government also has a legitimate interest in encouraging payment of that debt. (First Memorandum at 36 & n.7.)

7. A scheme that revoked the driver's licenses of non-indigent court debtors after one year of nonpayment would pass rational basis review, because the threat of revocation would plausibly serve as a method for coercing those people into paying their debts. (First Memorandum at 36-37.) Under the Griffin line of cases, however, the court must specifically consider whether the scheme's lack of an indigence exception is itself rational. Revocation would not be an effective mechanism for coercing payment from a truly indigent debtor, because no person can be threatened or coerced into paying money that he does not have and cannot get. (Id. at 37.) The numbers bear that ineffectiveness out. From July 1, 2012, to June 1, 2016, TDSHS revoked 146,211 driver's licenses for failure to pay fines, costs and/or litigation taxes; only 10,750 of those people-about 7%-had their licenses reinstated. (Docket No. 64 ¶¶ 107-08.) If Tennessee's revocation law were capable of coercing people into paying their debts in order to get their licenses back, it would be doing so. The overwhelming majority of the time, it is not.

8. Simply being ineffective does not typically cause a law to fail rational basis review, which is highly deferential to the legislative prerogative to choose the means through which the state will pursue its legitimate objectives. However, the Supreme Court has made clear that, "even in the ordinary ... case calling for the most deferential of standards," a law may be struck down if its substance is "so discontinuous with the reasons offered for it" that any pretense of rationality cannot be sustained. Romer v. Evans , 517 U.S. 620, 632 [116 S.Ct. 1620, 134 L.Ed.2d 855] (1996) ; see also Cleveland Bd. of Educ. v. LaFleur , 414 U.S. 632, 653 [94 S.Ct. 791, 39 L.Ed.2d 52] (1974) (Powell, J., concurring in the result) (arguing that policy would fail rational basis review because it is "either counterproductive or irrationally overinclusive"). The court's review includes considering whether, "in practical effect," the law "simply does not operate so as rationally to further the" legitimate purpose professed. U.S. Dep't of Agric. v. Moreno , 413 U.S. 528, 537 [93 S.Ct. 2821, 37 L.Ed.2d 782] (1973). (First Memorandum at 41.)

9. Ultimately, the court need not determine if the driver's license revocation law would fail rational basis review based on its sheer ineffectiveness alone, because, as applied to indigent drivers, the law is not merely ineffective; it is powerfully counterproductive. If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver's license away sabotages that prospect. For one thing, the lack of a driver's license substantially limits one's ability to obtain and maintain employment. Even aside from the effect on employment, however, the inability to drive introduces new obstacles, risks, and costs to a wide array of life activities, as the former driver is forced into a daily ordeal of logistical triage to compensate for his inadequate transportation. In short, losing one's driver's license simultaneously makes the burdens of life more expensive and renders the prospect of amassing the resources needed to overcome those burdens more remote. (Id. at 39-41, 47-51.)

10. Because driving is necessary for so many important life activities, some Tennesseans whose licenses have been revoked continue to drive, despite the state's revocation of their privileges. Driving on a revoked license is a misdemeanor, punishable by up to six months in jail and a fine of up to $500 for the first offense and up to 11 months and 29 days in jail and a fine of up to $2,500 for subsequent offenses. Tenn. Code Ann. §§ 40-35-111(e)(1)-(2), 55-50-504(a) (1)-(2). As a result, a license revocation based on court debt from a single conviction may begin a cycle of subsequent convictions and mounting court debt that renders the driver increasingly unable to amass the resources necessary to get his license back. His first conviction-of trespass, for example, like Thomas's-creates a court debt; that debt leads to a license revocation; the revocation leads to another conviction, this time for driving on a revoked license; the new conviction creates more debt; and the cycle begins again, with the driver, who was already indigent, only deeper in the red to the government and less likely ever to have a driver's license again. This propensity to create a debt spiral further exacerbates the counterproductive nature of Tennessee's scheme, as applied to indigent drivers. Not only is the law ineffective at collecting debt; not only is it counterproductive with regard to existing debt; but, in at least some cases, it affirmatively leaves more unpayable debt in its wake. (First Memorandum at 40-41.)

11. Based on the foregoing, the plaintiffs have stated a plausible theory of constitutional protection and constitutional injury, because they have been deprived of equal protection and due process by a law that lacks a rational basis for furthering any legitimate government objective. (First Memorandum at 46.)

12. Some of the supporting facts that the plaintiffs sought to introduce, however, were beyond the scope of judicial notice. The briefing of the parties failed to resolve the question of whether all of those facts were appropriate for consideration on a motion for summary judgment. The court, accordingly, held the motions for summary judgment in abeyance with regard to the plaintiffs' Count I and ordered further briefing on the underlying factual and evidentiary issues. (Id. at 51-58.)

13. With regard to Count II, which argues that members of the class were denied due process with regard to the deprivation of their driver's licenses, the court concluded that (1) there were disputed issues of fact with regard to the timing of the notice and effective dates related to the underlying revocations and (2) the extent of process due was likely to be effected, in significant part, by whether the plaintiffs successfully demonstrated the right to an indigence exception at issue in Count I. The court, accordingly, held the motions for summary judgment in abeyance with regard to Count II as well. (Id. at 63-68.)

14. With regard to Count III, the court held that the plaintiffs had, again, stated a plausible theory of constitutional protection, but that the court's consideration of that claim would benefit from the requested additional briefing. Specifically, the court held that, pursuant to the Supreme Court's holding in James v. Strange , a state's uniquely harsh treatment of a specific class of indigent criminal defendant debtors cannot be carried out in "such discriminatory fashion," relative to other debtors, that it "blight[s] ... the hopes of indigents for self-sufficiency and self-respect." 407 U.S. at 141-42 [92 S.Ct. 2027]. The degree to which Tennessee's scheme violates that rule depends on the same factual considerations at issue under Count I. (First Memorandum at 58-63.)

The parties have now filed the requested supplemental briefing, leaving the motions for summary judgment fully ripe and pending before the court.

B. Remaining Factual and Evidentiary Issues

1. Newly Agreed-Upon Facts

This court's Local Rules require that a party filing a motion for summary judgment support that motion with a "separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial." Local R. 56.01(b). The movant must support his assertion that a fact is undisputed "by specific citation to the record." Id. The nonmoving party must then "respond to each fact set forth by the movant by either (i) agreeing that the fact is undisputed; (ii) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (iii) demonstrating that the fact is disputed." Local R. 56.01(c). If the nonmoving party contends that a particular fact is disputed, then the nonmoving party's assertion, like the movant's, "must be supported by specific citation to the record." Id.

In support of their motion for summary judgment, the plaintiffs posited a number of allegedly undisputed facts tending to show the centrality of driving to life and economic self-sufficiency in Tennessee. Some were based on tabulations of census data, while others cited to a 2011 Brookings Institution report entitled Missed Opportunity: Transit and Jobs in Metropolitan America ("Brookings Report"). Purkey responded to these facts, not by conceding them or citing to portions of the record showing them to be disputed, but simply by objecting to them on evidentiary grounds. As the court explained in the First Memorandum, Purkey's responses (1) were premised on a misunderstanding of the movant's admissibility burden under Federal Rule of Civil Procedure 56(c)(1)-(2), which considers the admissibility of a fact at trial, not merely the admissibility of it in the form presented at the motion stage, and (2) arguably failed to conform to Local Rule 56.01(c), because Purkey did not indicate whether he actually disputed the facts and did not cite to the record in support of his responses. (First Memorandum at 54-55 & n.15.) Some of his underlying evidentiary objections, however, did raise colorable legal issues regarding whether the plaintiffs should be permitted to rely on the relevant facts in support of their motion for summary judgment. (Id. )

In order to better hone in on the areas of actual disagreement between the parties, the court ordered Purkey and the plaintiffs to confer and attempt to ascertain which of the objected-to facts are actually disputed. To their credit, the parties have done so and, as the court instructed, have filed additional statements of undisputed facts, as well as a few modified proposed statements of undisputed facts and responses in opposition thereto. (See Docket No. 97.)

In particular, it is now undisputed, for purposes of summary judgment, that, according to U.S. Census Bureau data:

• 92.5% of the people who work in the Chattanooga metropolitan area drive to work;

• 94.6% of the people who work in the Clarksville metropolitan area drive to work;

• 93.1% of the people who work in the Cleveland metropolitan area drive to work;

• 93.4% of the people who work in the Jackson metropolitan area drive to work;

• 93.8% of the people who work in the Knoxville metropolitan area drive to work;

• 93.5% of the people who work in the Memphis metropolitan area drive to work;

• 92.4% of the people who work in the Nashville metropolitan area drive to work; and

• Altogether, 93.4% of workers who reside in Tennessee drive to work.

(Docket No. 97 at 4-6.)

Purkey has also agreed, for purposes of summary judgment, to a few additional general postulates regarding the role of driving in Tennessee, namely that:

• "For most adult residents of Tennessee, the ability to drive is an important aspect of daily life, such as for accessing food, shelter, work, education, medical treatment, and family." (Id. at 2.)

• "Many indigent people who owe Court Debt and whose licenses have been revoked under the Statute still need to drive in order to get to work, school, or medical appointments." (Id. at 6-7.)

• "Even in cities with some public transportation, for many individuals, the public transportation offered is often inconvenient as a practical matter to enable them to travel to and from work."(Id. at 3-4.)

These more general stipulations differ little, if at all, from what the court has already indicated it can consider as a matter of judicial notice. The parties' agreement on those premises, however-along with Purkey's now having conceded a substantial amount of quantitative evidence regarding the importance of driving to employment in Tennessee-confirms that there is little remaining room for dispute with regard to the plaintiffs' proposition that, in light of the actual realities of economic life in Tennessee, the loss of one's ability to drive is substantially deleterious to a person's capacity for economic self-sufficiency.

2. Facts Related to the Brookings Report

The parties do continue to disagree with regard to whether the plaintiffs can rely on facts that can be found in the Brookings Report. Purkey initially objected to the plaintiffs' reliance on facts from the Brookings Report as improper because the Report, itself, is hearsay. As the court explained in the First Memorandum, however, the determinative issue regarding whether a fact can be considered in support of a motion for summary judgment is not whether it is presented, alongside the motion, in its final admissible form, but whether the fact can be presented in admissible form at trial. See Mangum v. Repp , 674 F. App'x 531, 536-37 (6th Cir. 2017) (quoting Fed. R. Civ. P. 56(c), advisory committee's note to 2010 amendment); Mount Vernon Fire Ins. Co. v. Liem Constr., Inc. , No. 3:16-CV-00689, 2017 WL 1489082, at *3 (M.D. Tenn. April 26, 2017) (Crenshaw, J.); Wilson v. Stein Mart, Inc. , No. 3:15-CV-01271, 2016 WL 4680008, at *2 (M.D. Tenn. Sept. 7, 2016) (Nixon, S.J.); Jeffrey W. Stempel et al. , 11-56 Moore's Federal Practice-Civil § 56.91 (2018); see also Maurer v. Indep. Town , 870 F.3d 380, 384 (5th Cir. 2017) ("At the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form. After a 2010 revision to Rule 56, materials cited to support or dispute a fact need only be capable of being presented in a form that would be admissible in evidence." (citations and internal quotation marks omitted) ); Romero v. Nev. Dep't of Corr. , 673 F. App'x 641, 644 (9th Cir. 2016) (noting that " Rule 56 was amended in 2010 to eliminate the unequivocal requirement that evidence submitted at summary judgment must be authenticated" and instead "requires that such evidence 'would be admissible in evidence' at trial" (quoting Fed. R. Civ. P. 56(c)(4) ); Gannon Int'l, Ltd. v. Blocker , 684 F.3d 785, 793 (8th Cir. 2012) (noting that, if a fact is objected to on evidentiary grounds on a motion for summary judgment, "the burden is on the proponent of the evidence to show that the material is admissible as presented or to explain the admissible form that is anticipated " (emphasis added) ).

The court ordered the plaintiffs to "file a supplemental brief, accompanied, as necessary, by supplemental affidavits and supplemental statements of undisputed fact, regarding the evidence that they anticipate presenting at trial on the necessity of driving in Tennessee, as well as the admissible forms in which they anticipate offering that evidence." (Docket No. 94 at 2-3.)

In support of their supplemental briefing, the plaintiffs have introduced a 28 U.S.C. § 1746 Declaration of Brookings fellow Adie Tomer, one of the authors of the Brookings Report and the head of Brookings' Metropolitan Policy Initiative ("Tomer Declaration"). (Docket No. 108-1.) Tomer explains the methodology of the Brookings Report both generally and in relation to its Tennessee-specific conclusions. (Id. ¶¶ 6-15.) He also declares that, although a number of years have passed since the Brookings Report was compiled, he has personally continued to monitor public transportation trends, including those in Tennessee:

In my work, I keep current on transportation trends in metropolitan areas throughout the United States. Based on that work, it appears (although it is not certain) that there may have been some moderate increase in access to transit in Memphis since the Report was issued, although such access in any event remains well below 50%. Aside from that, I have no reason to believe that the current (i.e., as of 2018) state of affairs as to the matters set forth in the preceding paragraph is materially different from what it was in 2011, and every reason to believe that it is not.

(Id. ¶ 16.)

The plaintiffs identify four specific factual assertions for which they seek to rely, in whole or in part, on Tomer's research and analysis that first appeared in the Brookings Report:

1. 90 minutes is a reasonable maximum for an individual's one-way commuting time to or from work.

2. Even in cities with some public transportation, for many individuals, the public transportation offered is often insufficient as a practical matter to enable them to travel to and from work in a reasonable amount of time.

3. In Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation.

4. In Nashville, Knoxville, and Chattanooga, more than two thirds of working-age residents lack access to public transportation.

(Docket No. 107 at 2-3 (citations omitted).) For the purposes of this opinion, the court will refer to those assertions as Tomer Conclusions 1 through 4.

Tomer Conclusion 1. With regard to the first statement, the court finds that the concept of a "reasonable maximum for an individual's one-way commuting time" is unnecessary to deciding the issues in this case and that the statement is, therefore, not material to the issues underlying the Motions for Summary Judgment. The possibility of workers suffering lengthy commuting times due to their revocations is relevant to the plaintiffs' constitutional theory, but drawing a particular line between what would be a reasonable commute and what would not is simply adding a layer of formality and complexity where none is necessary. Cf. Reese v. CNH Am. LLC , 694 F.3d 681, 686 (6th Cir. 2012) ("[T]he reasonableness inquiry is a vexing one."); United States v. Marriott , 225 F.3d 660 (table), 2000 WL 1033006, at *1 (6th Cir. July 21, 2000) ("[T]he term 'reasonable' is always difficult to define with absolute precision ...."). On a motion for summary judgment, "[f]acts are 'material' only if establishment thereof might affect the outcome of the lawsuit under governing substantive law." Rodgers v. Monumental Life Ins. Co. , 289 F.3d 442, 448 (6th Cir. 2002) (citing Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). The constitutional theories on which the plaintiffs rely do not require any particular finding about what is or is not a reasonable commute, and, indeed, it is not altogether clear what "reasonableness," as a factual matter, would mean here. Tomer Conclusion 1, therefore, is not material under Rule 56, and the court is not required to otherwise consider its admissibility.

Tomer Conclusion 2. The second statement that the plaintiffs have offered differs from what Purkey has conceded only in referring to public transit's being "insufficient as a practical matter ... to travel to and from work in a reasonable amount of time" as opposed to "inconvenient as a practical matter." This slight difference in wording, however, has no bearing on the court's analysis. The court has already taken ample judicial notice of the limitations of public transportation in Tennessee, and there is no need to turn to an expert to realize that, at some point, inconvenience reaches a level where it becomes tantamount to insufficiency. Where that line should be drawn is, like the question of what constitutes a "reasonable" commute, too abstract and undefined an inquiry to bear on the fundamental constitutional questions presented here. The court, accordingly, will disregard Tomer Conclusion 2, as well, as immaterial.

Tomer Conclusion 3. The plaintiffs' third assertion builds on the first's discussion of the reasonableness of a 90-minute commute. In this instance, however, the plaintiffs have offered more than an assertion of reasonableness for its own sake: "In Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not reasonably accessible by public transportation." Here, then, the discussion of reasonableness serves a particular descriptive purpose:

In establishing our model and presenting our data, we used 90 minutes as the cutoff for a "reasonable" amount of time for a one-way commute to work. Or, to put it differently, if an individual could not get to work via transit in an overall time (including, e.g., walking from the bus stop to the office) of 90 minutes or less, we counted that individual as not having a job that was "reasonably available via transit" from where s/he lived.

(Docket No. 108-3 ¶ 10.) While the court does not need to accept Tomer's premise that 90 minutes demarcates a reasonable commute from an unreasonable one, Tomer's explanation does allow the court to consider Tomer Conclusion 3 in terms of its purely factual content. Specifically, Conclusion 3 can simply be reformulated to claim that "[i]n Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not [accessible within 90 minutes] by public transportation." That assertion plainly meets the threshold of materiality, while avoiding an immaterial and unnecessary detour down the path of defining what is reasonable.

Purkey objects to the court's consideration of the Tomer Conclusions, first, by reiterating that the Brookings Report is hearsay. As the court held in the First Memorandum, however, the question is not whether the Brookings Report, as a document, is hearsay-which it undisputedly is-but whether facts derived from its underlying analysis can be presented in admissible form in this case. Although the Report is not admissible, it also is no bar to Tomer's testifying to what he learned during the process of its creation. A fact that appears as hearsay in one document is not somehow barred from ever being uttered again. Moreover, while it is true that many of the facts in the Tomer Declaration are based on Tomer's review of documents that would, themselves, be hearsay, an expert's reliance on otherwise inadmissible facts is expressly permitted by the Rules of Evidence as long as "experts in [the witness's] particular field would reasonably rely on those kinds of facts or data in forming an opinion." Fed. R. Evid. 703.

Purkey objects to the Tomer Declaration itself as untimely under Federal Rule of Civil Procedure 6(c)(2), which requires that "[a]ny affidavit supporting a motion must be served with the motion." The more specific provisions of Rule 56, however, expressly contemplate that a court may grant a party the chance to supplement the record in support of a fact offered pursuant to a summary judgment motion:

(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or

(4) issue any other appropriate order.

The plaintiffs' offering of the Tomer Declaration was in direct response to an order of the court. Purkey has provided no basis for concluding that the court's broad power to address unresolved factual issues pursuant to Rule 56 is somehow negated by the general provisions of Rule 6(c)(2). The plaintiffs' introduction of the Tomer Declaration, therefore, was timely.

Finally, Purkey takes issue with the fact that the plaintiffs have only introduced a declaration from Tomer, but not from the other authors of the Brookings Report. Again, Purkey's focus on the Report qua Report misses what the plaintiffs are-and are not-seeking to put before the court. They are not seeking to introduce the entirety of the Report as admissible, undisputed evidence. They have asserted a few specific facts to which Tomer declares he is capable of testifying, based on his own individual knowledge. They have, moreover, provided biographical evidence of Tomer's substantial expertise in transit issues, and Purkey has identified no basis for doubting that Tomer would be a qualified expert at trial. There is simply no basis for requiring him to be accompanied by his colleagues in asserting facts to which he, personally, can attest.

In the court's Order directing the parties to confer and, if necessary, submit supplemental briefing, the court strongly encouraged Purkey to lodge any factual objections he had to the plaintiffs' claims, even if he lodged evidentiary objections as well:

If Purkey responds to any fact solely by raising evidentiary objections or objecting to the form of the plaintiffs' statement, the court will construe Purkey's response as relying solely on the stated objection to defeat the court's reliance on the fact asserted and will take the veracity of the fact as conceded pursuant to Local R. 56.01(g).

(Docket No. 94 at 3.) Purkey has not disputed Tomer Conclusion 3 on any factual grounds, choosing, instead, to stand solely on his evidentiary objections. Because those objections fail, the court will take it to be conceded that, in Memphis, Nashville, and Knoxville, 72% to 75% of jobs are not accessible by public transportation within 90 minutes.

Tomer Conclusion 4. Purkey's response to Tomer Conclusion 4 is essentially the same as to Tomer Conclusion 3; he focuses almost entirely on the admissibility of the Brookings Report itself, despite the plaintiffs' having conceded that inadmissibility and proffered a flesh-and-blood witness in support of their proffered facts. Accordingly, the court will also take it as conceded that, in Nashville, Knoxville, and Chattanooga, more than two thirds of working-age residents lack access to public transportation.

C. Counts I & III: Tennessee's Revocation Scheme Does Not Survive Rational Basis Review

The court has already held that revoking the driver's licenses of indigent court debtors appears to be counterproductive to the legitimate purpose of collecting on the underlying debt, and that, at some point, a policy becomes so manifestly counterproductive that it fails even the deferential standard of rational basis review. The only outstanding question is whether the undisputed facts show that that is the case here. In light, in particular, of the now-conceded census tabulations suggesting that 92% or more of the workers in each of the state's major metropolitan areas drive to work, the court concludes that the plaintiffs have met their burden. Life in Tennessee is a prime example of the fact that, as the Supreme Court has observed, "driving an automobile [is] a virtual necessity for most Americans." Wooley v. Maynard , 430 U.S. 705, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). There is simply no room to doubt that losing the right to drive imposes a major economic hardship on a Tennessean, particularly if he is already indigent.

There is nothing inherently unconstitutional about imposing a harsh sanction, of course, as long as the government has a rational basis for doing so. Accordingly, nothing about the court's ruling suggests that Tennessee cannot revoke a person's license because he drove dangerously or showed himself to be incompetent behind the wheel. See Tenn. Code Ann. § 55-50-501(a)(1), (3), (6). Nothing suggests that the state cannot revoke a license because a person drove drunk. See Tenn. Code Ann. § 55-50-501(a)(2). Those are rational reasons to take a person's driving privileges away. Collecting debt from an indigent debtor, on the other hand, is simply not a rational basis for revoking a license. No rational creditor wants his debtor to be sidelined from productive economic life. No rational creditor wants his debtor to be less able to hold a job or cover his other, competing living expenses. A rational creditor might want the benefit of the threat of a license revocation, but nothing that the plaintiffs have argued would deny the state that threat. The state can still use the specter of revocation to encourage payment of court debt; it simply must afford the debtor the opportunity to demonstrate, first, that the only reason he has failed to pay is that he simply cannot.

Purkey or local authorities may complain that there is some expense associated with affording a debtor the opportunity to demonstrate his indigence. That is true, but it is no more true than in any of the other situations covered by the Griffin cases. The need to determine the indigence of court debtors, moreover, would fit into a preexisting system where such determinations are wholly routine. Even beyond Griffin and its progeny, indigence determinations are already a pervasive and unavoidable feature of the criminal justice system. See, e.g., Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (acknowledging right to indigent defense in some probation and parole revocation hearings); Miranda v. Arizona , 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (acknowledging right to indigent defense during a custodial interrogation);

Gideon vs. Wainwright , 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (acknowledging right to indigent defense at trial). Determining a person's indigence is something that Tennessee courts do thousands of times a year, often in staggering volumes and at a breakneck pace. See Tenn. Admin. Office of the Courts, Tennessee's Indigent Defense Fund: A Report to the 107th Tennessee General Assembly 11-12 (2011). The limited expense of adding one more stage where indigence matters is not enough to render a manifestly irrational legislative scheme rational.

Moreover, insofar as expense alone could justify withholding an indigence determination, that argument would have little relevance to Tennessee's scheme, because, as Purkey has repeatedly reminded the court, Tennessee drivers facing revocation for unpaid court debt already have established avenues through which they can seek discretionary relief-meaning that the resources needed to consider a debtor's claim have already been made available. See Tenn. Code Ann. § 40-24-102 ("The several courts in which a cause is finally adjudged are authorized , either before or after final judgment, for good cause , to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to the county or state."); Tenn. Code Ann. § 40-24-104(a) ("If the defendant ... is unable to pay the fine ... the court ... may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay ...."); Tenn. Code Ann. § 40-24-105(h) ("The court is vested with the authority and discretion to order the issuance of a restricted driver license for the purposes specified in subdivision (b)(3)(A)."); Tenn. Code Ann. § 40-25-123(b) ("[T]he presiding judge of a court of general sessions may suspend the court costs and the litigation tax..., for any indigent criminal defendant, as in the presiding judge's opinion the equities of the case require. "). When seeking that discretionary relief, moreover, a debtor could make the same indigence arguments that he would make under a scheme satisfying Griffin. The only difference between a Griffin -compliant scheme and what Tennessee already provides is that, under the current law, a court can conclude that a debtor's sole reason for nonpayment is his indigence and yet still allow the revocation to go forward. See State v. Black , 897 S.W.2d 680, 684 (Tenn. 1995) ; Waters v. Ray , No. M2008-02086-COA-R3-CV, 2009 WL 5173718, at *5 (Tenn. Ct. App. Dec. 29, 2009) ; State v. Lafever , No. M2003-00506-CCA-R3CD, 2004 WL 193060, at *7 (Tenn. Crim. App. Jan. 30, 2004). Purkey has identified no reason why a scheme with less discretion would somehow pose some significantly greater administrative burden.

"Under rational basis review, the governmental policy at issue 'will be afforded a strong presumption of validity and must be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate government purpose.' " Midkiff , 409 F.3d at 770 (quoting Hadix v. Johnson , 230 F.3d 840, 843 (6th Cir. 2000) ). As the Supreme Court has made clear, the actual effect of attaching a price tag to a particular outcome under our criminal justice system is that the system treats indigent and non-indigent defendants differently. Even if such disparate treatment can sometimes be defended as rational, see Johnson , 624 F.3d at 749, no presumption of rationality can stretch far enough to countenance the disparate treatment of indigent and non-indigent defendants when (1) the only goal of the challenged mechanism is ensuring payment of a sum of money and (2) the harsher sanction doled out to the indigent defendant is one that makes paying that sum substantially more difficult.

The Sixth Circuit has acknowledged that even a highly deferential standard of review like rational basis scrutiny may call for a somewhat "heightened" inquiry, if the law at issue targets indigent criminal debtors in a way that threatens to exacerbate their preexisting poverty. See Johnson , 624 F.3d at 749 (discussing Strange , 407 U.S. at 135, 92 S.Ct. 2027 ). The Supreme Court has recently acknowledged a principle that might explain such an approach, observing that its admittedly few cases striking down laws as failing rational basis review share "a common thread ... that the laws at issue lack any purpose other than a 'bare ... desire to harm a politically unpopular group.' " Trump v. Hawaii , 585 U.S. ----, 138 S.Ct. 2392, 2420, 201 L.Ed.2d 775 (2018) (quoting Moreno , 413 U.S. at 534, 93 S.Ct. 2821 ). That combination-a politically unpopular group and a law affirmatively and unjustifiably inflicting harm on them-is undeniably present here. It is difficult to imagine a group more politically unpopular than criminal defendants or less able to protect itself politically than the very poor. Purkey has repeatedly argued that, because those living in poverty have never been formally recognized as a suspect class, the court must ignore such considerations. The Supreme Court's recent pronouncements should put that argument to rest. See Trump , 138 S.Ct. at 2420 (citing Romer , 517 U.S. at 632, 116 S.Ct. 1620 (striking down law targeting gays and lesbians under rational basis review); Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 448-50, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (striking down law targeting the intellectually disabled under rational basis review) ).

Indeed, the Supreme Court's recent formulation could hardly have more closely mirrored Judge Moore's argument, in her Johnson v. Bredesen dissent, that the statute at issue in that case-which, like this one, penalized indigent criminal debtors for their inability to satisfy their debts-was unconstitutional because "[t]he attempt to incentivize payments that an individual is simply incapable of making ..., particularly when there are other collection methods available, advances no purpose and embodies nothing more than an attempt to exercise unbridled power over a clearly powerless group." Johnson , 624 F.3d at 757-58 (Moore, J., dissenting). The Johnson majority's only bulwark against Judge Moore's reasoning and the governing Supreme Court case law was to respond that the challenged statute was principally directed at those debtors who could pay, and that, while indigent debtors may have been swept into the same scheme, the law at issue at least avoided the especially constitutionally troubling step of further damaging their self-sufficiency. See Johnson , 624 F.3d at 748-49. That argument is unavailable here, where the law is overwhelmingly applied to people on whom it demonstrably has not worked and where the mechanism at issue is one that imposes a profound additional economic hardship. The court, accordingly, will grant summary judgment to the plaintiffs on Count I.

As the court observed in the First Memorandum, the analysis under Count III hinges on much the same facts as Count I. If a driver's license revocation is a powerful threat to basic self-sufficiency, then the state's scheme likely runs afoul of James v. Strange ; if it is not, then the scheme does not. The undisputed facts have shown that a driver's license revocation is, indeed, such a threat. The Kansas scheme at issue in Strange was held to be unconstitutional because it singled out debtors who owed money to the government related to their criminal prosecutions and imposed on them uniquely harsh collection mechanisms in "such discriminatory fashion" that it "blight[ed]" the "hopes of indigents for self-sufficiency and self-respect." 407 U.S. at 142-43, 92 S.Ct. 2027. That is exactly what Tenn. Code Ann. § 40-24-105(b), by failing to have an exception for indigence, does as well. The court, accordingly, will grant summary judgment to the plaintiffs as to Count III.

D. Count II: A Driver Facing Revocation for Nonpayment of Court Debt is Entitled to a Pre-Revocation Hearing on His Ability to Pay

A driver's license, once issued, is "not to be taken away without that procedural due process required by the Fourteenth Amendment." Bell v. Burson , 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (citing Sniadach v. Family Fin. Corp. , 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) ; Goldberg v. Kelly , 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ). Because the plaintiffs were entitled to the opportunity to defeat their revocations by demonstrating their indigence, and they received none, their rights to procedural due process have been violated. That alone would warrant a grant of summary judgment on Count II. The question still remains, however, of what process was due to them. Determining what process a person is entitled to in a particular situation requires the consideration of a number of factors:

[1] the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation[;] ... [3] the probable value, if any, of additional or substitute procedural safeguards; and [4] the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Shoemaker v. City of Howell , 795 F.3d 553, 559 (6th Cir. 2015) (quoting Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). The Supreme Court has made clear that a driver's license is an interest of sufficient importance that a pre-deprivation hearing may sometimes be required but that it is not so important that that will always be the case. Compare Bell , 402 U.S. at 539, 91 S.Ct. 1586, with Dixon v. Love , 431 U.S. 105, 115, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). Whether a pre-deprivation hearing is necessary, then, is likely to depend upon the latter three factors. " '[I]t is fundamental[,]' however, 'that except in emergency situations ... due process requires that when a State seeks to terminate an interest such as that here involved [a driver's license], it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.' "

Fowler v. Johnson , No. CV 17-11441, 2017 WL 6379676, at *10 (E.D. Mich. Dec. 14, 2017) (quoting Bell , 402 U.S. at 542, 91 S.Ct. 1586 ) ).

The court holds that the Eldridge factors strongly support notice and a right to assert one's indigence prior to revocation here. As the court explained in the First Memorandum, there is every reason to think that a large number of the individuals who face revocation under section 40-24-105(b) are indigent. (First Memorandum at 72.) Affording a debtor the opportunity to establish his indigence prior to revocation, therefore, is likely necessary to avoid a large number of erroneous deprivations. Because section 40-24-105(b) revocations are not safety-related, moreover, the government has relatively little interest in avoiding the slight delay necessary for such a process. See Dixon , 431 U.S. at 114-15, 97 S.Ct. 1723 (emphasizing importance of safety rationale in holding that post-deprivation hearings are sufficient). Indeed, a purely post-deprivation indigence process might create a greater administrative burden, because it would require TDSHS to quickly reverse many revocations shortly after they were imposed-whereas a pre-deprivation determination would allow TDSHS to avoid performing unwarranted revocations altogether.

Governments have identified a wide array of mechanisms through which such determinations might be made. One option, of course-although probably not the most expeditious one-would be to hold a full indigence hearing, before a court, for each debtor seeking an exception. See, e.g. , Tenn. Code Ann. § 40-14-202(b) (providing that, in the context of appointment of counsel, "[w]henever an accused informs the court that the accused is financially unable to obtain the assistance of counsel, it is the duty of the court to conduct a full and complete hearing as to the financial ability of the accused to obtain the assistance of counsel and, thereafter, make a finding as to the indigency of the accused."); but see David Louis Raybin, 9 Tenn. Prac. Crim. Prac. & Procedure § 5:7 ("The mechanics of determining indigency vary from court to court...."). In the alternative, however, a court may simply ask for an indigence affidavit, and embark on a further inquiry only if the affidavit is facially inadequate or is opposed. See, e.g. , Tex. R. App. P. 20.1 ("A party who filed a Statement of Inability to Afford Payment of Court Costs in the trial court is not required to pay costs in the appellate court unless the trial court overruled the party's claim of indigence in an order that complies with Texas Rule of Civil Procedure 145."); Tex. R. Civ. P. 145(d) ("The clerk may refuse to file a Statement that is not sworn to before a notary or made under penalty of perjury. No other defect is a ground for refusing to file a Statement or requiring the party to pay costs. If a defect or omission in a Statement is material, the court-on its own motion or on motion of the clerk or any party-may direct the declarant to correct or clarify the Statement."); Tex. R. Civ. P. 145(f)(1) ("The clerk or any party may move to require the declarant to pay costs only if the motion contains sworn evidence, not merely on information or belief ... that the Statement was materially false when it was made; or ... that because of changed circumstances, the Statement is no longer true in material respects."). Moreover, where, as here, an agency action is involved, it may not be necessary for a court to make an initial indigence determination at all, as a process for making such determinations can be put in place at the administrative level. See W. Va. Code Ann. § 17C-5A-3(e), (j)(1) (discussing agency process for determining indigence with regard to certain fees related to driver's license restoration, including promulgation of "criteria for determining eligibility of indigent offenders, and any necessary application forms").

As the Supreme Court has observed, when a state's existing procedures are held to violate due process, the state's "alternative methods of compliance are several" and its "area of choice is wide." Bell , 402 U.S. at 543, 91 S.Ct. 1586. Tennessee's scheme currently requires revocation with no consideration of indigence and, therefore, violates the Constitution and will continue to do so unless altered or supplemented by additional procedures. The state, of course, is under no obligation to replace its current scheme if the relevant decision makers conclude that other mechanisms for debt collection are preferable. See id. ("Indeed, Georgia may elect to abandon its present scheme completely and pursue one of the various alternatives in force in other States."). Insofar as the state may wish to pursue a modified system of revocation, however, the court will not unduly restrict the options available. The court can require the state to comply with the Constitution, but it cannot, at least at this stage, force it to choose one mechanism for doing so over another. Nor will the court venture into pre-judging the constitutionality of processes that do not yet exist.

The court, accordingly, will grant the plaintiffs summary judgment on Count II and hold that a driver facing revocation for nonpayment of court debt is entitled to a pre-revocation notice and determination related to his indigence. The court will not, however, unnecessarily narrow the potentially permissible options for complying with that edict.

E. Remedy

The plaintiffs have requested that the court grant the following relief:

b. Declare that the Statute [ Tenn. Code Ann. § 40-24-105(b) ] violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution;

c. Enjoin Defendants from revoking driver's licenses pursuant to the Statute and enjoin Defendants to (i) reinstate all driver's licenses that have been revoked pursuant to the Statute; (ii) waive all reinstatement fees for people whose driver's licenses were revoked pursuant to the Statute; (iii) notify all persons whose licenses were revoked of their reinstatement; (iv) and provide an accounting of all reinstatements made;

d. Award litigation costs and reasonable attorney's fees, as provided by 42 U.S.C. § 1988 ; and

e. Order such other and further relief as the Court deems just and proper.

(Docket No. 1 at 17-18.) With regard to the requested declaratory relief, the plaintiffs' right to the relief requested is apparent. The same is true with regard to their right to have revocations under Tenn. Code Ann. § 40-24-105(b) enjoined going forward. The statute is mandatory in operation and fails to provide the required substantive and procedural safeguards needed to protect indigent debtors; its application, therefore, must be enjoined, at least until some process is enacted to grant the rights to which debtors are entitled.

Less clear, however, is how the court should treat the drivers whose licenses have already been revoked. The Complaint asks that those licenses simply be reinstated. It is not apparent to the court, however, that every person under a revocation would or should have an automatic right to drive again, even if his revocation is lifted. Some such drivers may face other revocations or suspensions on other grounds. Others may simply be overdue for a license renewal. At this stage, moreover, the court simply lacks a record regarding the process of identifying the affected drivers, lifting their revocations, and allowing them to receive their licenses again. The court, accordingly, will order Purkey to submit a plan, within 60 days, for lifting the revocations of drivers whose licenses were revoked under Tenn. Code Ann. § 40-24-105(b) and providing an appropriate process for reinstatement. In the meantime, the court will order Purkey and his agency not to prevent any driver who seeks to have his revocation lifted fr