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Commissioner of the Indiana Bureau of Motor Vehicles in His official Capacity v. Vawter

Supreme Court of Indiana

November 6, 2015

RODNEY G. VAWTER, ET AL., Appellees/Plaintiffs below

         Petition for certiorari filed at, 02/04/2016

Page 1201

          Appeal from the Marion Superior Court, No. 49D14-1305-PL-06159. The Honorable James B. Osborn, Judge.

         ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana; Thomas M. Fisher, Solicitor General of Indiana; Heather Hagan McVeigh, Jared Jedick, Betsy M. Isenberg, Deputy Attorneys General, Indianapolis, Indiana.

         ATTORNEYS FOR APPELLEE: Kenneth J. Falk, Kelly R. Eskew, Gavin M. Rose, ACLU of Indiana, Indianapolis, Indiana.

         Dickson, Justice. Rush, C.J., and Rucker, David, and Massa, JJ., concur.


Page 1202

          On Direct Appeal

         Dickson, Justice.

         In accord with a recent decision of the United States Supreme Court, we uphold the actions of the Indiana Bureau of Motor Vehicles in the processing of applications for personalized license plates.

         This is a direct appeal from a trial court summary judgment declaring unconstitutional the statute that authorizes the Indiana Bureau of Motor Vehicles (" BMV" ) to refuse to issue personalized license plates (" PLPs" ). The trial court found that the statute and its related policies were vague, overbroad, and lacking in content-neutrality, violating the First and Fourteenth Amendments to the United States Constitution. The trial court also held that the Bureau violates due process under the Fourteenth Amendment by providing insufficient reasons for a denial or revocation of a PLP. The BMV appeals, arguing that because personalized license plates are government speech, the statute and policies are constitutional. For the reasons expressed below, we agree and reverse the trial court's summary judgment for the plaintiffs on these issues and direct the trial court to enter summary judgment for the BMV on these claims.

         Indiana allows a registered owner or lessee of certain types of vehicles, including passenger motor vehicles, to apply to the BMV for a PLP. Ind. Code § 9-18-15-1.[1] PLPs display numbers and/or letters in an alphanumeric combination which identifies the vehicle and is " requested by the owner or the lessee of the vehicle and approved by the bureau." Ind. Code § 9-13-2-125; see also Ind. Code § 9-18-15-4(a). Indiana's PLPs have become quite popular: between January 1, 2011 and July 19, 2013, the BMV received 71,452 new applications for these plates.

          After receiving a PLP application, the BMV is permitted by statute to reject any PLP alphanumeric combination that " (1) carries a connotation offensive to good taste and decency; (2) would be misleading; or (3) the bureau otherwise considers improper for issuance." Ind. Code § 9-18-15-4(b). The BMV also created both an administrative rule and a policy guide for making rejection and revocation decisions. The administrative rule allowed the BMV to " revoke a previously issued PLP if the bureau: (1) receives a substantial number of complaints regarding the previously issued PLP; and (2) determines the previously issued PLP contains references or expressions that Indiana law prohibits." 140 I.A.C. 2-5-4(a). The policy guide provided that a BMV License Plate/PLP Committee would review PLP applications and prescribed nine categories of reasons why PLP applications " may be prohibited." Appellant's App'x at 87. The Committee, however, had discretion to reject PLPs outside those categories and to accept PLPs within them. As the Committee made decisions, the BMV stored rejected applications--approximately 6,000 by 2013--on a list to compare with future applications. For each rejection, the BMV mailed the applicant a form letter indicating that their application was denied " based on the inappropriate content or invalid format." Id. at 14.

Page 1203

          The plaintiffs, as a certified class,[2] challenged the constitutionality of the PLP program.[3] They argue that " the decisionmaking process used in denying or revoking PLPs," violates the First Amendment and the Due Process Clause of the Fourteenth Amendment. Appellee's Br. at 1. The BMV argues in response that because PLPs are government speech, the challenged standards do not violate the Constitution. The trial court granted summary judgment in favor of the class, concluding that " Indiana Code § 9-18-15-4(b), 140 I.A.C. 2-5-4, and the Policy Statement violate the First Amendment and due process as vague, overbroad, and lacking in content-neutrality." Appellant's App'x at 29. The trial court also held that " [t]he BMV denies procedural due process to those whose PLPs are denied or revoked" because " there are no specific factual bases given for the determination." Id. at 35, 37. The BMV appeals these decisions.[4]

          This Court has mandatory and exclusive jurisdiction over this appeal because the trial court declared a state statute unconstitutional. Ind. Appellate Rule 4(A)(1)(b). We review the trial court's grant of summary judgment and any questions of federal constitutional law de novo. Bleeke v. Lemmon, 6 N.E.3d 907, 917 (Ind. 2014); Choose Life Ill., Inc. v. White, 547 F.3d 853, 858 (7th Cir. 2008). The material facts are undisputed.

         The BMV argues on appeal that its PLP decision-making process is constitutional because " personalized plates are government speech, and even viewpoint discrimination is permissible." Appellant's Br. at 12. The BMV further contends that its " procedures for denying an application or revoking . . . plates satisfy procedural due process" because " [m]otorists have no protected interest in possessing a personalized plate that displays any particular message." Appellant's Br. at 15, 41. The BMV especially relies on the United States Supreme Court's recent decision in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015), arguing that under Walker's reasoning, personalized license plates must be government speech.[5]


Page 1204

         1. The Walker Test for Government Speech

          In Walker, the Supreme Court identified a three-factor standard for identifying government speech. 135 S.Ct. at 2247, 192 L.Ed.2d at 282-83. First, whether the government has historically used the medium to speak to the public; second, whether the message is closely identified in the public mind with the state; and third, the degree of control the state maintains over the messages conveyed. Id. Analyzing these factors together, we find that Indiana's PLPs are government speech.

         a. Indiana's Historical Use of License Plates

         License plates have long been used for government purposes. First and foremost, the alphanumeric combinations provide identifiers for public, law enforcement, and administrative purposes. Through these identifiers, the government enables the public to provide a unique identifier to others, differentiate between vehicles in a parking garage or lot, and identify their vehicles if they are borrowed or stolen. In addition to license plates providing unique identifiers, they " long have communicated messages from the States." Id. at 2248, 283. This is true of plates around the country and in Indiana. All fifty states have included graphics on their plates, including Pennsylvania's keystone in 1910, an Idaho potato in 1928, Florida grapefruits in 1935, a Georgia peach in 1940, a Colorado skier in 1958, and a Maine lobster in 1987. See generally James K. Fox, License Plates of the United States: A Pictorial History 1903-to the Present (Interstate Directory Publ'g Co., Inc., 1994).[6] Written messages on license plates have been just as popular, beginning with " IDAHO POTATOES" in 1928. Id. ; see Walker, 135 S.Ct. at 2248, 192 L.Ed.2d at 283-84. Many other states, such as Alabama, California, Maine, Missouri, and Washington, have included their state slogan. Tourist advertising is popular in both words and graphics as license plates have featured New Hampshire's Old Man in the Mountain, South Dakota's Mount Rushmore, Kentucky's Churchill Downs, and Minnesota's 10,000 lakes. See generally Fox, License Plates of the United States.

         Like other states, Indiana has frequently communicated through its license plates. Indiana's slogans have included, among others, " DRIVE SAFELY" in 1956-1958, " LINCOLN'S YEAR" in 1959, " SAFETY PAYS" in 1960-1962, " 150TH YEAR" in 1966, " WANDER" in 1985, " HOOSIER HOSPITALITY" in 1991, and currently " BICENENNIAL 1816-2016." Id. at 39, Indiana Antique License Plates 2000-Present, . Indiana has used graphics as well, such as a minuteman in 1976, an Indy 500 car and checkered flag in 1979, and a sunset over a farm from 1993-1997. Fox, License Plates of the United States 39; Indiana Antique ...

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