Advocates around the country are grappling with injustices in traffic court systems: minor traffic offenses or nonviolent infractions often carry increasingly high fines and fees; people who cannot afford to pay are faced with even greater fines for nonpayment, loss of a driver’s license, and sometimes imprisonment. With racial imbalances in policing and the criminal justice system, the injustices in such systems fall most heavily on communities of color.
Here we discuss how a coalition of California advocates successfully engaged in impact litigation, legislative advocacy, and policy reform to transform some of the more egregious injustices in California’s traffic court system.
Trapped in a Vicious Cycle: The Problem of Driver's License Suspensions
Henry Washington just wanted to buy a used car. Instead he found himself in a spiral of traffic fines and fees, which left him with an insurmountable court debt burden and a suspended driver’s license.
The problems started in 2010, when Washington was working part-time as an in-home caregiver for his brother. He saved up enough money to buy a used car, only to realize after the fact that the car could not pass a smog test. In California all cars need to pass a smog test before they can be registered with the California Department of Motor Vehicles (DMV). Without his smog certificate, Washington was stuck with no savings and an unregistered vehicle. Soon thereafter Washington received a traffic ticket for driving his car without current registration. He had three options: pay in full (which he had no money to do); register his car and give proof of registration (which he could not afford to do either); or appear in court to contest the charge (which would have been futile since his vehicle was in fact unregistered).
Unable to pay to fix the car, register the car, or pay his traffic fine, and without a car he could legally drive, Washington did not appear for his court date. Because he was unable to appear or pay his fine, the Solano County traffic court assessed additional fines and fees for a total of $778 and referred his driver’s license for suspension. When Washington came to BayLegal in 2016, his license had been suspended for six years. He was subsisting on approximately $500 per month in cash aid and food stamps and was unable to pay to get his license reinstated.
Washington was not alone. A 2015 report, Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California, found that over 17 percent of Californians, more than four million, had suspended licenses for failure to appear in court or pay a fine. Like Washington, these Californians were saddled with insurmountable traffic debt and the far-reaching consequences of license suspension, including unemployment, job loss, and decreased wages.
California, like many states, has long sought to plug budget deficits by raising fines and fees on minor infractions. The base fines for citations are increased by almost a factor of five through the imposition of a series of add-on fines and fees enacted over the past decade. What was once a citation with a $100 fine can now easily balloon to $800. When one fails to pay a fine in full, one is hit with an additional $300 civil assessment and—before our advocacy efforts described here—would lose one’s driver’s license.
These Californians were saddled with insurmountable traffic debt and the far-reaching consequences of license suspension, including unemployment, job loss, and decreased wages.
The cost of these fines, fees, and the resulting license suspensions disproportionately affect people of color, who are more likely to be stopped by police, more likely to receive a citation, and more likely to be arrested and jailed. In 2015 over 70 percent of people seeking help in San Francisco from local service providers for driver’s license suspensions were African American, although African Americans constituted only 6 percent of the city’s population.
California’s traffic courts generally handle any ticket issued by law enforcement—and until recently could impose license suspension for failure to pay such tickets—even when the underlying offense has nothing to do with traffic safety or driving, such as car registration irregularities, sleeping on the sidewalk, littering, or failing to pay transit fare.
Before a new state law went into effect, California automatically suspended licenses for failure to pay a citation, with little or no inquiry into the equities of such drastic punishment. California Vehicle Code Section 40509.5 permitted traffic courts to refer drivers to the DMV for license suspension if the driver willfully failed to pay a legally imposed fine, but courts routinely referred licenses for suspension without making a willfulness determination. Low-income traffic court defendants generally had no opportunity to demonstrate indigence or to request an ability-to-pay determination because traffic courts had no processes in place to evaluate financial circumstances. This system seemed to violate the 1983 U.S. Supreme Court decision Bearden v. Georgia, which held that punishing a person for nonpayment, where the person had no ability to pay, violated due process and equal protection.
Traffic defendants who were factually innocent of charges against them faced further injustice. California courts routinely required drivers wishing to contest a ticket to post “bail” in an amount of the full fine. This insurmountable burden cost many low-income people the opportunity to have their day in court.
Building a Coalition Toward a Systemic Solution
California advocates launched a three-pronged strategy of impact litigation, legislative advocacy, and policy reform to tackle the injustices in the traffic court system.
In 2011 BayLegal and the Lawyers Committee for Civil Rights of the Bay Area began working directly with San Francisco courts to devise a method for low-income drivers to reinstate their suspended licenses and to stop new failure-to-pay suspensions for individuals with no disposable income. These efforts resulted in the eventual implementation of new processes, such as a “petition for waiver of civil penalties and assessments,” but what became clear is that advocacy with an individual court, while important, was not enough to spur the systemic changes necessary to fix the underlying injustices in California traffic courts. San Francisco advocates turned their focus to the California Judicial Council and the Administrative Office of the Courts, bodies with statewide policymaking authority, in an effort to halt the automatic suspension of driver’s licenses for failure to appear in court and failure to pay fines.
In 2013, as the crisis in California’s traffic courts was drawing the attention of advocates statewide, Lawyers Committee and Western Center on Law and Poverty cosponsored a bill—ultimately unsuccessful—that would have taken on driver’s license suspensions of poor people. A similar bill failed in 2014.
After two failed legislative efforts, advocates including BayLegal, Lawyers Committee, Western Center on Law and Poverty, East Bay Community Law Center, Legal Services for Prisoners with Children, and A New Way of Life Re-entry Project, formed a coalition dedicated to reforming traffic court fines and fees and driver’s license suspensions. The breadth of the coalition, with advocates from across the state and a wide range of skills and expertise, laid the groundwork for a multipronged, cohesive strategy to effect systemic reform.
The coalition’s formation coincided with the national outrage at the police killing of Michael Brown in Ferguson, Missouri, on August 9, 2014.
The coalition’s formation coincided with the national outrage at the police killing of Michael Brown in Ferguson, Missouri, on August 9, 2014. The subsequent report on the investigation by the U.S. Department of Justice into the Ferguson Police Department brought national attention to the issue of municipalities using fines and fees disproportionately imposed on the poor and people of color to make up for budget shortfalls and offering no alternatives for people with no ability to pay.
The California coalition published a 2015 report on driver’s license suspensions, Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California, to highlight the extent of the economic toll, caused by unfair license suspensions, on individuals and communities. This was followed by a 2016 report, Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California, which examined the racial justice implications of driver’s license suspensions, and a 2017 report, Paying More for Being Poor, which compared traffic fines in California with those in other states. Separately, in April 2015, the ACLU of Northern California and pro bono lawyers at Pillsbury Winthrop Shaw Pittman LLP sent demand letters to eight counties in Northern California; the letters warned that the practice of requiring a defendant to post “bail” to contest a traffic ticket was illegal.
On June 8, 2015, the California Supreme Court responded to the growing public outcry over the injustices in traffic court by outlawing the “bail” requirement for challenging traffic tickets. Shortly thereafter, following a concerted advocacy effort, Gov. Jerry Brown signed into law a temporary amnesty program that allowed low-income Californians to receive up to an 80 percent reduction in traffic court fines and fees incurred before 2013. BayLegal and partner organizations—coalescing under the umbrella Back on the Road California—gave technical assistance and public education with a social media presence to help ensure that the amnesty program would have a meaningful impact. The amnesty program succeeded in resolving traffic debt for hundreds of thousands of Californians and reinstating 246,300 of the 612,831 driver’s licenses that had been suspended for failure to pay.
The amnesty program helped many low-income individuals, but it did not fix the broken system itself. Thousands continued to approach BayLegal and other legal aid organizations for help with their suspended driver’s licenses and citation debt. California needed systemic reform of traffic court processes, namely, the right to an ability-to-pay hearing before a license was referred to the DMV for suspension and an opportunity to clear old fines and fees to reinstate a suspended license. A working group formed to explore options for impact litigation.
Bringing a Test Case: Rubicon Programs v. Solano County Superior Court
The traffic court’s practices of suspending a driver’s license for failure to pay without first giving drivers notice and an opportunity to be heard on their ability to pay violated state statutory provisions and constitutional due process and equal protection clauses. After informal advocacy efforts failed to curb these practices, advocates approached courts across the state and offered each the opportunity to resolve these issues without incurring the costs of litigation. Many courts responded by changing their practices voluntarily; others did not. Solano County Superior Court was one in which advocates were unable to reach a negotiated resolution pre-suit.
Henry Washington had lost his license in Solano County, and many more people were in the same situation. Rubicon Programs, a local service provider of employment, career, and financial services to more than 3,500 people each year, had many clients who had lost their licenses because of the Solano County Superior Court’s practices. Washington, Rubicon, and the ACLU of Northern California joined together to bring suit; they were represented by BayLegal, ACLU of Northern California, Lawyers Committee, Western Center on Law and Poverty, Legal Services for Prisoners with Children, and Pillsbury Winthrop Shaw Pittman LLP.
We filed the complaint on June 15, 2016. We alleged that the courts were violating a fundamental principle of our justice system—that a person should not be punished simply for being poor. By routinely referring indigent drivers to the DMV for license suspensions, without having made an inquiry into the driver’s ability to pay, the courts were violating state law and the California and U.S. Constitutions’ due process and equal protection clauses. Shortly thereafter, advocacy groups in Southern California filed suit in Los Angeles County; they alleged similar claims. A month after the Solano case was filed, the presiding judge for Solano County Superior Court issued an administrative order temporarily ceasing referrals to the DMV for license suspensions and holds due to failure to pay and entered negotiations to resolve the matter.
Negotiating a Model Process
The Solano legal team entered negotiations with several goals, including: (1) traffic court defendants must be given notice of their right to an ability-to-pay determination, and this notice should be supplied in as many ways as possible; (2) traffic court defendants should be able to ask—in person or in writing—for an ability-to-pay determination at any time, even after a fine or fee has been referred to collections; (3) the standards used by the court to determine whether a defendant has the ability to pay should be transparent and should set forth an income threshold under which a defendant may be presumed unable to afford to pay; and (4) forms and notices related to ability to pay should be easy to read and navigate. The hope was to negotiate with the Solano County court a set of policies, practices, and forms that could serve as a model for advocacy with traffic courts across the state.
While advocates were pursuing relief through litigation and negotiations, the coalition was also engaged in advocacy with the Judicial Council of California and the California State Legislature to change traffic court practices statewide. In response to continued pressure from the advocacy community, the Judicial Council of California in January 2017 issued new rules that now require all California traffic courts to give notice and an opportunity for traffic court defendants to be heard on the issue of ability to pay.
As a result of these negotiations, the court’s notices were revised to highlight each traffic defendant’s right to request an ability-to-pay determination.
These rules dovetailed with the efforts of advocates in the Solano County litigation to negotiate reforms of each notice that the court uses to inform traffic defendants of their rights. As a result of these negotiations, the court’s notices were revised to highlight each traffic defendant’s right to request an ability-to-pay determination. Importantly the notices were designed with the assistance of a readability expert so as to be easy to read and understand. Notices were tested with plaintiff Rubicon’s employment services participants to make sure they were user-friendly. Participants were easily able to identify on the new notice the information about ability to pay and the right to request a determination.
Negotiations also resulted in a new form to be used by traffic defendants who are asking the court to consider their ability to pay and to request an alternative to payment in full without having to appear in court. If a driver receives a means-tested public benefit, has a monthly income that is 250 percent or less than the federal poverty guidelines, or is homeless, the court agreed that it should consider alternatives to payment such as reduction of the fee, dismissal, or community service. The negotiated settlement includes the agreed-upon final notices and forms, which are now in use by the Solano County court.
Rubicon v. Solano County Superior Court settled on August 8, 2017. Along with the negotiated items discussed above, the settlement agreement requires training for court staff and an 18-month monitoring period, during which the Solano County court will give the plaintiff’s lawyers its internal training materials and sufficient documents from ongoing traffic cases for the plaintiffs to confirm that the court is complying with the agreement.
Rubicon v. Solano County Superior Court has played a significant role in the statewide progress toward a more equitable and just traffic court system since we began advocacy in 2011. All courts are now required by their governing body to give notice and opportunity to be heard on the ability to pay. The Solano County case, the Los Angeles County lawsuit, and a companion case filed against the DMV have spurred legislative action on a broader scale. After years of failing to pass legislation to effect systemic change in the traffic court system, advocates were finally successful in the 2017 legislative session when California enacted a law that ended the practice of suspending driver’s licenses in California simply for failure to pay a traffic court fine or fee.
This is by no means the end of the story. More work remains. Litigation is pending against the DMV for its unreasonable and illegal license suspensions. California continues to impose exorbitant court fines and fees, which are among the highest in the country, and has not enacted any comprehensive system for evaluating a defendant’s ability to pay fines and fees; nor has it developed alternatives to money fines for those who cannot afford to pay. Until further changes are implemented, low- and middle-income households will continue to be burdened by exorbitant debt. To effect the systemic change our clients need, BayLegal and our partners in the advocacy community remain dedicated to being strategic in combining direct services, systemic advocacy, and impact litigation.