Children First Found. Inc. v. Martinez, 1:04-CV-0927 (NPM/RFT)

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtNeal P. McCurn
PartiesTHE CHILDREN FIRST FOUNDATION, INC., Plaintiff, v. RAYMOND P. MARTINEZ, individually, and BARBARA J. FIALA, in her official capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants.
Docket Number1:04-CV-0927 (NPM/RFT)
Decision Date08 November 2011

THE CHILDREN FIRST FOUNDATION, INC., Plaintiff,
v.
RAYMOND P. MARTINEZ, individually,
and BARBARA J. FIALA, in her official
capacity as Commissioner of the New York
State Department of Motor Vehicles,1 Defendants.

1:04-CV-0927 (NPM/RFT)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DATED: November 8, 2011


APPEARANCES:

ALLIANCE DEFENSE FUND
Attorneys for Plaintiff

ALLIANCE DEFENSE FUND
Attorneys for Plaintiff

ALLIANCE DEFENSE FUND
Attorneys for Plaintiff

OF COUNSEL:

BRIAN W. RAUM, ESQ.

JAMES M. JOHNSON, ESQ.

JEFFREY A. SHAFER, ESQ.

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JAMES P. TRAINOR, ESQ.

MARK J. MCCARTHY, ESQ.

SENTA B. SIUDA, ESQ.
Assistant Attorney General

TRAINOR & CUTLER, LLP
Attorneys for Plaintiff

HARRIS BEACH PLLC
Attorneys for Raymond Martinez

HON. ERIC T. SCHEIDERMAN,
Attorney General for the State of
New York
Attorney for Barbara J. Fiala

Neal P. McCurn, Senior District Judge

MEMORANDUM, DECISION AND ORDER

I. Introduction

Like many other states, New York operates a program that allows vehicle owners to display specialty license plates which bear a specific message or symbol. In this civil rights action, the plaintiff, the Children First Foundation, Inc. ("CFF"), challenges the denial of its application for a specialty plate by defendants, the former and current commissioners of the New York Department of Motor Vehicles ("DMV"). CFF sues Raymond Martinez ("Martinez"), the former commissioner, in his individual capacity and sues Barbara J. Fiala ("Fiala"), the current commissioner, solely in her official capacity (collectively, "Defendants"). CFF argues primarily that Defendants violated its rights under the Free Speech Clause

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of the First Amendment to the United States Constitution, but also asserts claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Presently before the court are motions for summary judgment by each party. Decision is rendered solely on the papers submitted, without oral argument. Because the court concludes that defendants violated CFF's First Amendment free speech rights as a matter of law, it need not address either of CFF's Fourteenth Amendment claims. Also, because Martinez prevails on his affirmative defense of qualified immunity, CFF's individual capacity claims against him are dismissed.

II. Procedural Background

Familiarity with much of the procedural background of this case is presumed, but will be summarized here for purposes of clarity.

This action was originally commenced in August 2004. The defendants subsequently filed a pre-answer motion to dismiss the entire complaint. After hearing oral argument regarding the motion, this court issued a bench order granting the motion in part, based on stipulation by plaintiffs, and denying the motion in part.

Thereafter, defendants filed both a motion for reconsideration with this court and an appeal of this court's decision on the motion to dismiss with the Court of Appeals for the Second Circuit. The sole issue on reconsideration and appeal was this court's denial of qualified immunity. This court denied defendants' motion for reconsideration, noting that they failed to overcome the "formidable hurdle" faced by movants seeking dismissal on qualified immunity grounds via a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 31. Shortly thereafter, defendants appealed the denial of their

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reconsideration to the Court of Appeals for the Second Circuit.

The Second Circuit dismissed both appeals by summary order, finding that because facts supporting the defense of qualified immunity do not appear on the face of the complaint, said defense cannot be determined as a matter of law, and therefore, the court lacks appellate jurisdiction. See Children First Found., Inc. v. Martinez, 169 Fed. App'x. 637, 639 (2d Cir. 2006). Defendants' appeals were dismissed accordingly.

A few months later, after stipulation by all parties, plaintiffs amended their complaint to comport with this court's ruling on the Rule 12(b)(6) motion. Shortly after CFF amended its complaint, defendants collectively filed an answer. At some point within the following six months, one of the defendants made a motion to amend her answer, which was granted in part and denied in part by Magistrate Judge Randolph F. Treece, see Children First Found., Inc. v. Martinez, 631 F. Supp. 2d 159 (N.D.N.Y. 2007), and later, upon objection of the parties, reversed by this court, see Children First Found., Inc. v. Martinez, No. 1:04-cv-0927, 2007 WL 4618524, at *1-3 (N.D.N.Y. Dec. 27, 2007). Interlocutory appeal was requested, and denied. See Children First Found., Inc. v. Martinez, No. 1:04-cv-0927, 2008 WL 2557433 (N.D.N.Y. June 20, 2008).

The parties eventually stipulated to the dismissal of all defendants except Martinez and Fiala. Subsequently, the presently pending motions for summary judgment were filed.

III. Factual Background

The relevant facts are not in dispute. Accordingly, there are no material questions of fact to prevent summary judgment here. CFF is a non-profit organization, incorporated in New York State, that exists to raise funds and

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awareness to promote and support adoption as a positive choice for women with unwanted pregnancies or newborns in New York, New Jersey, and Connecticut. CFF restricts its donations to non-profit organizations that receive no government funding, provide services to pregnant women, and do not perform or refer for abortion. In December 2001, CFF, through its director and president, Dr. Elizabeth Rex ("Rex"), applied for a custom plate through the DMV's specialty plate program, which was later denied. Martinez was the commissioner of DMV at that time.

New York State law enables the commissioner of the DMV ("the Commissioner") to issue special number (or "custom") license plates for an additional fee, and to promulgate regulations in relation thereto. N.Y. Veh. & Traf. Law § 404(1) (McKinney 2009). The Commissioner shall not issue any special number plate that, among other things, "is, [in his or her discretion,] obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or patently offensive." N.Y. COMP. CODES R. & REGS. tit. 15, § 16.4 (2001). One category of special number plates is referred to by the DMV as a "Picture Plate" and is defined as "a vehicle plate that has the words 'New York' contained in a blue banner, and a picture or logo next to the plate number." There are several categories and sub-categories of custom plates,2 some of which are authorized by legislative action. See §§ 404-b through 404-w. Otherwise, the procedure for the application for and issuance of a custom plate is purely within the discretion of the

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Commissioner and is not governed by statute or regulation. According to the DMV's website at the time of CFF's application for a custom plate, there are certain pre-requisites to applying for a custom plate: (1) an organization must be not-for-profit and registered with the New York State Department of State; (2) it must have a sponsoring agency or organization as the main point of contact; and (3) it must pay a $5000 deposit and sign a memorandum of understanding with the DMV that the deposit is refunded when two hundred sets of the plate are sold within a three-year period.3 An organization can request a "custom plate development kit" from the DMV, which includes information and the required forms.

Ostensibly, a request was made for such a "development kit" because on September 6, 2001, a DMV employee sent Rex a letter and packet of information that presented the requisite form and content of an application for a new custom plate, including administrative details with respect to marketing, submission of artwork, means of payment, and other matters. On December 28, 2001, Rex, on behalf of CFF, submitted an application for a custom plate to DMV. CFF's application included proposed artwork and design for the custom plate, which reflects the corporate logo of Choose Life, Inc.:4 "a yellow sun behind the faces of two smiling children that are drawn as if in crayon by a child." Am. Compl. ¶ 33a. The plate design also included the tag line, "Choose Life," which also appears as if

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drawn in crayon by a child. Two months later, Martinez denied CFF's application, citing the denial of a request for a similar "Choose Life" plate by the DMV in 1998. The 1998 Choose Life plate was denied by DMV's then commissioner Richard E. Jackson, Jr., citing "the State of New York's policy not to promote or display politically sensitive messages" on its license plates due to the potential for "road rage." Ex. W to Decl. of Jeffrey A. Shafer, Jan. 25, 2010, Dkt. No. 203-2 ("Shafer Decl.").

Thereafter, CFF's legal counsel contacted Martinez by letter, wherein he argued that the DMV's stated reason for the denial of CFF's custom plate application constitutes impermissible viewpoint discrimination through Martinez's unbridled discretion. In reply by...

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