AG Mark Herring

In December 2018 Attorney General Mark Herring spoke at a roundtable discussion on hate crimes held at Sixth Mount Zion Baptist Church.

Advocates for ending Virginia’s practice of suspending driver’s licenses for people who haven’t paid court costs said they were dismayed with a court filing this week by Attorney General Mark Herring that would keep suspensions the law of the land.

Herring’s motion asks a federal judge in Charlottesville to dismiss a lawsuit seeking to end the Virginia Department of Motor Vehicles’ practice of suspending licenses, a practice that advocates for the poor say creates a trap: If people can’t drive to jobs, they can’t earn money to pay court costs and fines.

In December, U.S. District Judge Norman K. Moon granted an injunction that prevented DMV from enforcing the law, ruled that the plaintiffs had a substantial chance of winning, and found that the policy likely violated constitutional due process rights.

Gov. Ralph Northam wants to end the policy, but legislation in this year’s General Assembly session by Sen. Bill Stanley, R-Franklin County, was killed by House Republicans.

So Northam proposed a budget amendment for lawmakers to consider earlier this month when they addressed the governor’s vetoes and amendments to legislation. The amendment was approved, to much fanfare, setting the stage for a July 1 reinstatement of suspended driver’s licenses for hundreds of thousands of Virginians.

But the amendment applies only to the second year of the state’s current budget, from July 1, 2019, to June 30, 2020. After that, the old policy will be in place unless the General Assembly changes it in 2020.

Advocates for overturning the policy, meanwhile, hope they can win at an August trial in the federal lawsuit and prevent license suspensions in the future.

That’s why they said they were dismayed by the attorney general’s motion, filed Tuesday.

Herring, representing Virginia DMV Commissioner Rick Holcomb, argued in the motion that the budget amendment makes the lawsuit moot and said the lawsuit should be dismissed or delayed until after next year’s General Assembly session.

Herring spokeswoman Charlotte Gomer said the attorney general shares Northam’s desire to end the suspension policy legislatively. But because of the budget amendment, the attorney general believes “there is no point in further costly litigation.”

The Legal Aid Justice Center in Charlottesville said Herring should either decline to enforce an unconstitutional law or let the lawsuit proceed to trial.

“The attorney general seeks to play legislative roulette with nearly 1 million families, abdicating his responsibility to stop unconstitutional practices within the commonwealth, in the chance that the General Assembly does the right thing to make the relief permanent,” Angela Ciolfi, the center’s executive director, said in a statement. “If the litigation is dismissed and the General Assembly fails to pass a clean repeal bill next year, nearly 1 million Virginians will be plunged back into the court debt trap on July 1, 2020.”

Sen. Jennifer McClellan, D-Richmond, a lawyer, said she disagreed with Herring’s position.

“It we don’t pass a repeal next year, then July 1, 2020, the law stands as it is,” she said. “As a matter of policy, it’s wrong. It’s counterintuitive, and I believe it to be unconstitutional.”

Stanley, also a lawyer, said he was disappointed by Herring’s decision and was struggling to understand why the attorney general would say the lawsuit is moot when the issue had not been decided.

Herring could take the position that the law is unconstitutional and then enter into settlement negotiations to resolve it, Stanley said.

African Americans disproportionately receive half of the orders of driver’s license suspension for unpaid court debt, according to the Legal Aid Justice Center.

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