Decision Date07 February 2003
Docket NumberNo. 01-214.,01-214.
Citation819 A.2d 742
CourtVermont Supreme Court

John H. Bloomer, Jr. of McClallen & Bloomer, P.C., Rutland, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, William E. Griffin, Chief Assistant Attorney General, and Bridget C. Asay, Assistant Attorney General, Montpelier, for Defendant-Appellee.



¶ 1. Plaintiff Carol Ann Martin appeals the superior court's decision upholding the Department of Motor Vehicles' (DMV) refusal to issue her a special motor vehicle license plate displaying the letters "IRISH." We conclude that the administrative regulation upon which DMV based its ruling is inconsistent with, and thus unauthorized by, the governing statute. Accordingly, we reverse the superior court's decision.

¶ 2. This case is an example of what can happen when law and common sense depart. The governing statute provides that the Commissioner of DMV "may refuse to honor any [vanity plate] request that might be offensive or confusing to the general public." 23 V.S.A. § 304(d). Neither DMV in refusing to grant the "IRISH" plate, nor the State in its argument before this Court, have asserted that "IRISH" is a word that might be offensive to the public — undoubtedly because the general public would find the assertion more offensive than the word.1 Rather, DMV's decision, the superior court's opinion upholding that decision, and the State's defense of both rely upon an administrative regulation that seeks to insulate the vanity plate program from constitutional attack by removing the Commissioner's statutory obligation to determine a requested plate's potential to offend the general public.2 That the Legislature could relieve the Commissioner of such an obligation we have no doubt. But until that body has chosen to do so by amending the statute currently granting the Commissioner the authority to refuse only those requests that "might be offensive or confusing to the general public," we cannot find a legal basis to uphold a regulation that assumes powers greater than those set forth in the statute purportedly authorizing the regulation.

¶ 3. The instant case arose when Martin submitted a special plate application to DMV listing two choices, "IRISH" and "IRISH1." Martin received a letter from DMV stating that her application could not be processed because the Commissioner may deny any special plate request that might be offensive or confusing to the general public.3 Martin requested an administrative hearing, which was held before a DMV hearing officer. At the hearing, DMV did not offer any specific evidence indicating that the requested plate might be offensive to the general public, but rather relied exclusively upon the new regulation's categorical exclusion of references to ethnic heritage. In her written decision upholding the denial of Martin's request, the hearing officer concluded that the Commissioner has the authority to deny a request for special plates referring to ethnic heritage, irrespective of whether the reference is a positive or negative connotation.

¶ 4. Martin appealed that ruling to the superior court pursuant to V.R.C.P. 74 (appeals from decisions of governmental agencies). The court held a hearing at which both Martin and the State presented oral argument. In its written decision following the hearing, the court rejected Martin's request for declaratory relief based on the following rationale:

Given the statutory authority to ban the offensive, and the constitutional mandate to avoid viewpoint discrimination, the Commissioner's regulation to place ethnic references off the table for license plates is reasonable, statutorily authorized and constitutionally necessary if the state is to preserve its vanity license plate program and also avoid the issuance of patently offensive license plates.

¶ 5. On appeal to this Court, Martin argues that the amended regulation is invalid because it is contrary to the intent of the Legislature, overbroad, and arbitrary. Martin also argues that both the regulation and its governing statute, 23 V.S.A. § 304(d), violate the First Amendment of the United States Constitution because they give DMV unfettered discretion to discriminate based on the viewpoint of the applicant. The State responds that the regulation is consistent with § 304(d), and is necessary both to insulate the statute from constitutional challenges and to alleviate DMV's administrative burden. The State also contends that Martin's constitutional arguments were waived and, in any event, are without merit.


¶ 6. This case is unusual in that it is the anticipation of a constitutional challenge that formed the basis of not only the superior court's decision and the State's defense of the case, but also of the challenged regulation itself. Through regulation, the State sought to resolve a legal dilemma — how does one constitutionally implement a statute when the Commissioner's discretion to issue vanity plates must be grounded in a determination of what might offend the public, given the susceptibility of such a statute to constitutional attack for allowing viewpoint discrimination in a designated or nonpublic forum? It is the attempt of the State's lawyers to address this legal dilemma that frames this case.

¶ 7. To be sure, the State's sensitivity to the potential constitutional complications of a vanity plate program is well founded. While a special plate program limiting requests to names and places would negate all but the most frivolous challenges, the decision of state legislatures to authorize more expansive (and lucrative) vanity plate programs has implicated more significant First Amendment concerns. Although courts and commentators have differed on the extent to which the establishment of a vanity plate regime implicates free speech rights, there is little doubt that there are some constitutional limitations on the government's authority in this area.4 See generally M. Herald, Licensed to Speak: The Case of Vanity Plates, 72 U.Colo. L.Rev. 595 (2001); L. Jacobs, The Public Sensibilities Forum, 95 Nw. U.L.Rev. 1357 (2001).

¶ 8. But though the State's preemptive strike is understandable, neither its lawyers nor this Court is free to ignore the plain meaning of a legislative enactment in contemplation of its perceived legal infirmities. Indeed, the State has cited no case law, and we have found none, suggesting that an administrative agency can promulgate regulations inconsistent with an unambiguous state to save the statute from a potential constitutional attack. Rather, the State cites In re G.T., 170 Vt. 507, 517, 758 A.2d 301, 308 (2000), for the unremarkable proposition that in "exceptional circumstances" this Court "must narrow the reach of a broadly-worded statute to make it consistent with other statutes or to avoid serious questions of constitutionality." Of course, "[u]nlike courts, which are granted their power by the Constitution, see Vt. Const. ch. II, § 4, administrative bodies have only the adjudicatory authority conferred on them by statute." Workers' Comp. Div. v. Hodgdon, 171 Vt. 526, 529, 759 A.2d 73, 77 (2000) (mem.).

¶ 9. Even assuming that DMV stood on par with this Court in terms of insulating § 304(d) from constitutional attack, see Elks Lodges 719 & 2021 v. Dep't of Alcoholic Beverage Control, 905 P.2d 1189, 1202 (Utah 1995) (as with court, agency must prefer constitutional reading of statute over unconstitutional interpretation), the agency's attempt to protect the statute is misplaced because, as discussed in more detail below, § 304(d) is not ambiguous.5 If a statute is unambiguous, an agency cannot insulate it from constitutional attack by adopting a new interpretation unsupported by the statutory language. See Nat'l Rifle Ass'n of Am. v. Reno, 216 F.3d 122, 127 (D.C.Cir.2000) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for proposition that "`the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"); see also United States v. Robel, 389 U.S. 258, 267, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (task of writing legislation within constitutional bounds is "committed to Congress"); Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) ("Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.").

¶ 10. The obligation to refrain from rewriting a statute to insulate it from constitutional attack is particularly strong, even for courts, when the revised reading of the statute would create new policy among several choices — especially when those policy choices implicate constitutional rights. Where a number of choices are available, judicial (or agency) statutory restructuring necessarily implicates "troublesome policy considerations which should in the first instance be dealt with by our Legislature rather than this Court." State v. Rosenfeld, 62 N.J. 594, 303 A.2d 889, 894 (1973). For these reasons, we find unavailing the State's argument that promulgation of the challenged regulation was necessary to avoid a constitutional challenge to the statute.

¶ 11. Moreover, even if we were inclined to uphold the challenged regulation and, in effect, allow DMV to rewrite § 304(d), we would not do so here. From the beginning, Martin's position has been that the amended regulation is inconsistent with § 304(d). For the first time on appeal — and only in response to the State's constitutional necessity defense — Martin argues that both the amended regulation and § 304(d) are unconstitutional. Because these arguments were not raised before the superior court, they are not...

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