Arizona Life Coalition Inc. v. Stanton

• Decision Date: 28 January 2008
• Docket Number: No. 05-16971.,05-16971.
• Citation: 515 F.3d 956
• Parties: ARIZONA LIFE COALITION INC., an Arizona nonprofit corporation; Gary Paisley, an individual, Plaintiffs-Appellants, v. Stacey STANTON, Arizona License Plate Commission Chair, in her personal capacity; Michael Frias, Arizona License Plate Commission mem ber, in his personal capacity; Brian Lang, Arizona License Plate Commission member, in his personal' capacity; John Spearman, Arizona License Plate Commission member, in his personal capacity; Jackie Allgood, Arizona Motor Vehicle Division legislative liaison, in her personal capacity; Terry Connor, individually and in his capacity as an Arizona License Plate Commission member; William A. Ordway, in his official capacity as an Arizona License Plate Commission member; Lela Steffey, in her official capacity as an Arizona License Plate Commission member, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

515 F.3d 956

ARIZONA LIFE COALITION INC., an Arizona nonprofit corporation; Gary Paisley, an individual, Plaintiffs-Appellants, v. Stacey STANTON, Arizona License Plate Commission Chair, in her personal capacity; Michael Frias, Arizona License Plate Commission mem ber, in his personal capacity; Brian Lang, Arizona License Plate Commission member, in his personal' capacity; John Spearman, Arizona License Plate Commission member, in his personal capacity; Jackie Allgood, Arizona Motor Vehicle Division legislative liaison, in her personal capacity; Terry Connor, individually and in his capacity as an Arizona License Plate Commission member; William A. Ordway, in his official capacity as an Arizona License Plate Commission member; Lela Steffey, in her official capacity as an Arizona License Plate Commission member, Defendants-Appellees.

No. 05-16971.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 15, 2007.

Filed January 28, 2008.

Jeffrey A. Shafer (argued), Alliance Defense Fund, Washington, D.C.; Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ; Peter A. Gentala, The Center for Arizona Policy, Scottsdale, AZ; Gary S. McCaleb, Alliance Defense Fund, Scottsdale, AZ, for the plaintiffs-appellants.

Daniel P. Schaack (argued), Assistant Attorney General, Phoenix, AZ; James R. Morrow, Assistant Attorney General, Liability Management Section, Phoenix, AZ, for the defendants-appellees.

Denise M. Burke, Women's Choice Pregnancy Clinic, Chicago, IL, for the amicus curiae.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-03-01691-PGR.

Before: DAVID R. THOMPSON and RICHARD C. TALLMAN, Circuit Judges, and KEVIN THOMAS DUFFY,^* Senior United States District Judge.

TALLMAN, Circuit Judge:

Arizona Life. Coalition ("Life Coalition") appeals a summary judgment in favor of Stacey Stanton and other members of the Arizona License Plate Commission (collectively the "Commission"). Life Coalition contends that the Commission violated its First Amendment right to free speech and Fourteenth Amendment right to equal protection by arbitrarily denying its application for a special' Arizona organization license plate that would portray its message "Choose Life." We agree that the Commission violated Life Coalition's First Amendment right to free speech and therefore do not reach its equal protection argument.

Messages conveyed through special organization plates—although possessing some characteristics of government speech—represent primarily private speech. Through its special organization license plate program, Arizona has created a limited public forum for all nonprofit organizations that meet the State's statutory requirements. Because the Commission denied Life Coalition's application on grounds not specified in the statute or related to the limited purpose of the license plate forum, we reverse the district court's grant of summary judgment in favor of the Commission.

I

The parties do not dispute the facts, and there is no material issue of fact to prevent summary judgment from being entered. Life Coalition is an Arizona nonprofit corporation that provides "compassionate care ... to persons who are considering abortion, or who are affected by abortion." In June 2002, Life Coalition resubmitted an application for a speciality plate that would "display Life Coalition's official logo, a small graphic of two children's faces and the motto, `Choose Life.'"¹ The Arizona Department of Transportation ("Department") certified that Life Coalition met the requirements of Arizona Revised Statute section 28-2404(G)(2)² and submitted Life Coalition's request for its special license plate to the Commission.³

Upon receiving a request, section 28-2404(B) provides that

[t]he [C]ommission shall authorize a special organization plate if the organization meets the following requirements:

(1) The primary activity or interest of the organization serves the community, contributes to the welfare of others and is not offensive or discriminatory in its purpose, nature, activity or name[;]

(2) The name of the organization or any part of the organization's purpose does not promote any specific product or brand name, that is provided for sale[;] and

(3) The purpose of the organization does not promote a specific religion, faith or antireligious belief.

(Emphasis added).

The Commission first considered Life Coalition's application in August 2002. Members of the Commission raised concerns over whether the general public would believe Arizona had endorsed the message of the "Choose Life" license plate, as well as concerns over whether groups with differing viewpoints would file applications. To obtain legal advice, the Commission tabled Life Coalition's application without taking action.

To alleviate the Commission's concerns, Life Coalition filed a revised application on September 27, 2002. In this application Life Coalition proposed including its name on the plate design. The Commission considered Life Coalition's revised application in an August 2003 meeting. During the meeting, Gary Paisley, Chairman of Life Coalition, explained how Life Coalition served the community: (1) it organized a diaper drive, after which Life Coalition donated thousands of diapers to the Arizona Diaper Bank; (2) "Life Coalition's purpose is to provide compassionate services to those people that are considering or have, been affected by abortion including pregnancy tests, pregnancy counseling, and relationship counseling"; and (3) Life Coalition "established a hotline for women who are pregnant." Paisley also told the Commission that Life Coalition's membership included approximately 40 organizations and 100,000 individuals. Paisley then confirmed that a person or organization must subscribe to Life Coalition's statement of principles to become a member.⁴

Initially, the Commission declined to take action on Life Coalition's application. After Paisley implored the Commission to explain what statutory requirements Life Coalition failed to satisfy, a member of the Commission moved to formally deny the application, which passed by voice vote. Chairwoman Stanton replied to Paisley's request for an explanation by stating that "the action of the Commission is final" and that she did not believe "now is an opportunity for[] further debate, or for further info that [Life Coalition] could put on additional applications."

Life Coalition filed suit in the United States District Court for the District of Arizona on September 2, 2003. It filed its First Amended Verified Complaint on December 10, 2003. Pertinent to this appeal, Life Coalition moved for summary judgment on November 30, 2004, and the Commission cross-moved for summary judgment on January 1, 2005. The district court denied Life Coalition's motion for summary judgment, and granted the Commission's cross-motion for summary judgment. Life Coalition timely appealed. We reverse.

II

We review de novo a grant of summary judgment. Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999). The Tax Injunction Act ("TIA"), 28 U.S.C. § 1341, imposes a jurisdictional limitation on federal courts. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1176 (9th Cir.1984), overruled on other grounds as recognized by Arakaki v. Lingle, 477 F.3d 1048, 1062 (9th Cir.2007). We are required to raise jurisdictional issues sua sponte, id., and we note the TIA's application in the special organization plate context has been raised by our sister circuits. Compare Am. Civil Liberties Union of Tenn. v. Bredesen, 441 F.3d 370, 373 (6th Cir.2006) (rejecting the argument that the TIA barred suit because the extra payments for special organization plates resemble "payments for simple purchases from the government" and are not taxes), with Henderson v. Stalder, 407 F.3d 351, 356 (5th Cir.2005) (concluding that the additional charges for speciality plates are taxes because they "sustain[] the essential flow of revenue to the government," are "imposed by a state or municipal legislature," and are "designed to provide a benefit for the entire community"). Therefore, although neither party questions whether the TIA precludes jurisdiction in this case, we nonetheless address it here.

The TIA provides that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341. In Arizona, drivers must pay an additional twenty-five dollar fee to obtain a special organization plate. The issue is whether the money paid to obtain a special organization plate constitutes a tax to which the TIA would apply.

We find persuasive the Sixth Circuit's analysis in Bredesen and hold the extra fee is not a tax. The transaction between a state's vehicle owner and the issuing authority is more akin to a contractual debt than a state imposed tax. Arizona has not coerced a sale attendant to the requirement that cars bear license plates to assist in identifying their owners, but has instead induced willing purchasers to agree to pay a certain extra sum of money in return for the right to bear a special message on an organizational license plate. See Bredesen, 441 F.3d at 374; see also Women's Res. Network v. Gourley, 305 F.Supp.2d 1145, 1154 (E.D.Cal.2004) ("[The additional payments are] voluntarily paid by a limited group of motorists who wish to both support a [special cause], and presumably desire to display that support on their license plate.").

The Sixth Circuit's reasoning is supported by our decision in Bidart Brothers v. California Apple Commission, 73 F.3d 925 (9th Cir.1996). There, we recognized that the additional charge does not have to be characterized as a "tax" or a regulatory "fee." Id. at 933. In determining whether the TIA applies, the "ultimate question remains whether an assessment is a `State...