280 F.3d 159 (2nd Cir. 2001), 00-7869, Perry v McDonald

Docket Nº:Docket No. 00-7869
Citation:280 F.3d 159
Party Name:PAULA PERRY, PLAINTIFF-APPELLANT, v. PATRICIA A. MCDONALD, COMMISSIONER OF THE VERMONT DEPARTMENT OF MOTOR VEHICLES, IN BOTH HER PERSONAL AND OFFICIAL CAPACITIES; AND MICHAEL A. SMITH, FORMER MOTOR VEHICLE UNIT SUPERVISOR FOR REGISTRATION AND LICENSE INFORMATION, IN BOTH HIS PERSONAL AND OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.
Case Date:October 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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280 F.3d 159 (2nd Cir. 2001)

PAULA PERRY, PLAINTIFF-APPELLANT,

v.

PATRICIA A. MCDONALD, COMMISSIONER OF THE VERMONT DEPARTMENT OF MOTOR VEHICLES, IN BOTH HER PERSONAL AND OFFICIAL CAPACITIES; AND MICHAEL A. SMITH, FORMER MOTOR VEHICLE UNIT SUPERVISOR FOR REGISTRATION AND LICENSE INFORMATION, IN BOTH HIS PERSONAL AND OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.

Docket No. 00-7869

United States Court of Appeals, Second Circuit

October 17, 2001

Argued: April 3, 2001

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David Putter, Montpelier, Vt, for Plaintiff-Appellant.

Bridget C. Asay, Assistant Attorney General for the State of Vermont, Montpelier, Vt, for Defendants-Appellees.

Before: Oakes, Kearse, and Cabranes, Circuit Judges.

Appeal from a judgment of the United States District Court for the District of Vermont (J. Garvan Murtha, Chief Judge) entered on June 21, 2000, granting summary judgment for defendants on plaintiff's claims under the First and Fourteenth Amendments. We hold that plaintiff does not have a First Amendment right to use special license plates bearing the letters "SHTHPNS," and that plaintiff's due process rights under the Fourteenth Amendment were not violated when defendants revoked these plates after realizing they had been issued in error.

Affirmed.

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Jose A. Cabranes, Circuit Judge

The questions presented are whether there is a First Amendment right to use special license plates bearing the letters "SHTHPNS," and whether a car registrant's due process rights under the Fourteenth Amendment are violated when a state department of motor vehicles revokes these plates after the department realizes that they have been issued in error. We answer both questions in the negative and therefore affirm.

Paula S. Perry ("Paula Perry" or "Perry") appeals from a June 21, 2000 judgment of the United States District Court for the District of Vermont (J. Garvan Murtha, Chief Judge) granting summary judgment for defendants Patricia A. McDonald, then-Commissioner of the Vermont Department of Motor Vehicles ("Vermont DMV" or "DMV"), and Michael A. Smith, a former Motor Vehicle Unit Supervisor for Registration and License Information at the DMV, and dismissing Perry's claims under the First and Fourteenth Amendments. Adopting the recommendation and report of Magistrate Judge Jerome J. Niedermeier on the First Amendment claim, and issuing its own opinion on the Fourteenth Amendment claim, the District Court held that McDonald and Smith did not violate Perry's constitutional rights by revoking her specially requested license plates ("vanity plates"), which bear the letters "SHTHPNS."

We conclude that (1) Perry does not have a First Amendment right to use vanity plates bearing the letters "SHTHPNS"; and (2) defendants did not violate Perry's due process rights under the Fourteenth Amendment when they revoked these plates after issuing them in error. Accordingly, we affirm the judgment of the District Court.

I.

The following facts are not disputed, unless otherwise indicated.

On July 8, 1997, Perry submitted an application to the Vermont DMV for vanity plates for her motor vehicle, which she co-owned with her husband, Lawrence Perry. Vanity plates are license plates bearing a combination of letters and/or numbers chosen by the vehicle owner rather than chosen randomly by the DMV. In Vermont, a vehicle owner may obtain vanity plates by paying an additional fee as long as the requested combination of letters and/or numbers meets certain criteria, including that the requested plate not be "offensive or confusing to the general public." Vt. Stat. Ann. tit. 23, § 304(d).1

Here, Perry requested vanity plates bearing the letters "SHTHPNS," which stand for "Shit Happens."2 The Page 164

special-license-plate application listed "Lawrence & Paula Perry" as co-owners of the vehicle and gave their mailing address as "HCR 32, Box 500, Montpelier, VT 05602," but it was signed only by Paula Perry. Perry paid a twenty-dollar additional fee for the plates, and the DMV issued the plates on July 10, 1997.

The DMV officials explained to the District Court and in their brief on appeal that the plates were issued in error. The DMV considered Perry's plates to be offensive and accordingly asserted that it could have, and should have, refused to issue them pursuant to Vt. Stat. Ann. tit. 23, § 304(d). As noted above, this provision of the Vermont statutes empowers the Commissioner of the DMV to "refuse to honor any request [for special plates] that might be offensive or confusing to the general public." DMV officials first became concerned that Perry's plates were "offensive" and had been issued in error when a DMV employee saw the plates and informed defendant Smith. The DMV then took steps to recall the plates and to replace them at no extra charge.

Pursuant to the DMV's policy of mailing correspondence to the first co-owner listed on the vehicle registration, Smith sent a letter dated August 8, 1997 (the "August letter") to Lawrence Perry at the address listed on the special-plate application. By this time, Perry and her husband were estranged, and Perry had obtained a new mailing address, of which she had not informed the DMV. As a result, Perry did not see the August letter or the DMV letters that followed it until the first week of November 1997.

The August letter explained that the SHTHPNS vanity plates had been issued in error and requested that the addressee, Lawrence Perry, return them to the DMV. Enclosed with the letter were a set of temporary plates to replace the vanity plates, an application for a new set of plates to be issued at no charge, and a postage-paid envelope in which to return the vanity plates. The letter apologized for any inconvenience and invited Mr. Perry to contact the DMV if he had any questions. The DMV received no response.

Smith then sent a second letter, dated September 22, 1997 (the "September letter"), to Lawrence Perry at the same address. Smith attached a copy of the August letter, stated that the plates had not yet been received by the DMV, and explained that "action to suspend this registration [would] be initiated" if the DMV did not receive, by October 1, 1997, either the plates or a letter indicating that the plates had been destroyed. The DMV received no response to the September letter.

On November 3, 1997, the DMV mailed an "Order of Suspension and/or Revocation of Registration" ("Order") to Lawrence Perry at the same listed address. The Order stated that the registration number SHTHPNS had been "suspended and/or revoked" as of November 3, 1997, and informed the recipient of the right to a hearing on the matter if such a hearing was requested within ten days. By this time, the temporary plates that had been sent with the August letter had expired.

By November 5, 1997, Perry had seen all of the letters, and on that day she mailed to the DMV a response to the Order (the "November 5 letter"), in which she gave her address as "HCR 32, Box 790, Montpelier, VT 05602," an address with a different box number from the one that she had shared with Lawrence Perry. In this November 5 letter, Perry requested a hearing on the revocation of her vanity plates and requested that the plates be reinstated pending the outcome of the hearing, but she did not request a new set Page 165

of temporary plates. Perry wrote, inter alia: "I don't understand why I was not notified of this complaint against my vanity plate since this registration is not only in Lawrence Perry's name but also mine, Paula S. Perry. None of the correspondence received on this issue has ever been sent to me, the operator of this vehicle." However, the DMV maintains-and Perry does not deny-that Perry had not notified the DMV of her new address until she wrote the November 5 letter.

Defendant Smith responded to Perry's November 5 letter with a letter dated November 7, 1997, which described the previous correspondence sent by the DMV and enclosed copies. He explained to Perry that the DMV's files showed the same address for the owner and co- owner of the vehicle and that no address change information for Paula Perry had been received by the DMV. The November 7 letter included a change of address form. It also stated that Perry's request for a hearing had been forwarded to the Hearings Division, and that Perry would be notified of the outcome of the request. It concluded by stating "that the license plate `SHTHPNS' remains under suspension until the decision is received from the Hearings Division." In his November 7 letter, Smith did not explain that Perry could still obtain temporary plates, or apply for either new vanity plates or a new set of regular plates at no extra charge.

The hearing on the registration revocation was held on November 26, 1997. On January 26, 1998, while the hearing officer's decision was still pending, Perry's attorney called the DMV to inquire about the status of Perry's registration. Realizing at that point that Perry did not have valid plates since the revocation of her vanity plates had become effective on November 3, 1997, Commissioner McDonald issued a new set of permanent plates and had them hand-delivered to Perry's home that day. The DMV claims that Perry could have accepted these plates without relinquishing her right to appeal the DMV's proposed revocation of the SHTHPNS plate; it is not clear, however, whether anyone explained this to Perry, and Perry has consistently maintained that accepting these plates would have meant giving up her appeal. In any case, Perry refused the new plates.

Several days later, on January 30, 1998, the Commissioner reinstated the SHTHPNS plates pending the hearing officer's decision, so...

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