COMMISSIONER OF THE INDIANA BUREAU OF MOTOR VEHICLES IN HIS OFFICIAL CAPACITY, Appellant/Defendant below,
RODNEY G. VAWTER, ET AL., Appellees/Plaintiffs below
for certiorari filed at, 02/04/2016
from the Marion Superior Court, No. 49D14-1305-PL-06159. The
Honorable James B. Osborn, Judge.
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.
FOR APPELLEE: Kenneth J. Falk, Kelly R. Eskew, Gavin M. Rose,
ACLU of Indiana, Indianapolis, Indiana.
Justice. Rush, C.J., and Rucker, David, and Massa, JJ.,
On Direct Appeal
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
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.
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. 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.
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.
plaintiffs, as a certified class, challenged the
constitutionality of the PLP program. 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
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.
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
The Walker Test for Government Speech
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
Indiana's Historical Use of License Plates
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). 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
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, http://www.in.gov/bmv/2834.htm . 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 ...