The U.S. Court of Appeals for the Ninth Circuit this week turned back a Los Angeles lawyer’s constitutional challenge to the state’s suspension of his driver’s license and publication of his name on the list of the state’s top 500 delinquent taxpayers.
The court on Wednesday called Ernest Franceschi Jr. of Franceschi Law Corp. a “major tax delinquent” and upheld a lower court ruling dismissing his lawsuit against officials with the state’s franchise tax board and Department of Motor Vehicles.
Franceschi, who has represented himself, said Friday that he intends to seek en banc review.
According to the Ninth Circuit opinion, Franceschi didn’t file any California state income tax returns between 1995 and 2012, and contended that he didn’t owe any taxes, penalties, or interest to the state for those years. For each of those years, the state’s tax board gave Franceschi written notice of his deficiencies, which according to the state had grown to nearly $242,277 in back taxes.
Francheschi sued state officials after he received a February 2014 notice indicating he would be included in a list of the state’s top 500 taxpayers owing more than $100,000. He claimed the state tax laws violated his procedural and substantive due process rights and sought a preliminary injunction blocking the publication of his name and the suspension of his driver’s license, which could result from his inclusion the list.
U.S. District Judge Christina Snyder of the Central District of California denied Francheschi’s request in 2014.
Wednesday’s Ninth Circuit opinion, written by Second Circuit Judge Barrington Parker sitting by designation, agreed with Snyder in finding Franceschi’s claims meritless.
Parker wrote that Franceschi “had a readily available, constitutionally valid, pre-deprivation opportunity to prevent the suspension of his license.”
Namely, Franceschi could have paid the taxes the state said he owed, then sued for a refund based on his claims that he made much lower than the average salary for a lawyer than the state presumed he made.
“Courts have consistently held that pay first, litigate later procedures such as these satisfy due process in the context of tax collection,” Parker wrote.
The court also found that suspending Franceschi’s driver’s license would be a hassle, but it wouldn’t deprive him of the ability to practice law.
“Franceschi still has access to public transit, taxis, or services such as Lyft or Uber,” Parker wrote. “Accordingly, whatever burden may exist does not amount to a ‘complete prohibition’ on Franceschi’s ability to practice law, and thus, does not rise to a violation of substantive due process.”
The opinion was joined by Ninth Circuit Judges Michael Daly Hawkins and Sandra Ikuta.
In a phone interview Friday, Franceschi said the Ninth Circuit decision ignored his primary due process argument: That there was no right to a hearing before the state DMV suspended his license.
“The statute doesn’t provide a hearing commensurate with the deprivation,” he said. He called the proposal of paying, then suing a “red-herring.”
He said that if the Ninth Circuit doesn’t take up his request to hear the case en banc, “I probably won’t be driving with a California license ever again.”
Franceschi, however, said he has a home in another state and that before his California license was suspended he turned it in for a license in another state. The California suspension, he said, is “really of no consequence.”