Ogilvie v. Gordon
| Decision Date | 24 November 2020 |
| Docket Number | Case No. 20-cv-01707-JST |
| Citation | 540 F.Supp.3d 920 |
| Parties | Paul OGILVIE, et al., Plaintiffs, v. Steve GORDON, Defendant. |
| Court | U.S. District Court — Northern District of California |
Wencong Fa, Joshua Paul Thompson, Pacific Legal Foundation, Sacramento, CA, for Plaintiffs.
Chad Allen Stegeman, California Department of Justice Office of the Attorney General, San Francisco, CA, for Defendant.
JON S. TIGAR, United States District Judge Before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 40, 47. The Court will grant Plaintiffs’ motion and deny Gordon's motion.
The California Department of Motor Vehicles ("DMV") requires California drivers to display a license plate with a unique configuration of letters and numbers. Cal. Veh. Code §§ 5103, 5105(a). In lieu of receiving a standard plate that contains a random configuration of number and letters, drivers may purchase a personalized or "environmental" plate with customized alphanumeric combinations.1 ECF No. 41-1 at 12. An applicant requesting a personalized plate must provide "[t]he applicant's first, second, and third choices of the configuration of letters and numbers to appear on [the] license plate[ ] and the meaning of each [choice]." See Cal. Code Regs. tit. 13 § 206.00(c)(7). The applicant must also pay $53 on issuance of the personalized plate, and $43 for its renewal. Cal. Veh. Code §§ 5103 ; 5106(a)-(b). Most of the revenue funds projects related to "the preservation and protection of California's environment." Cal. Pub. Res. Code § 21190. In 2019, the DMV processed 233,791 personalized license plate applications. ECF No. 41-9 at 13. The environmental license plate program generated more than $77 million in revenue in the 2018/2019 fiscal year. Id. at 18.
Requested personalized license plate configurations must be approved by the DMV, which "may refuse to issue any combination of letters or numbers, or both, that may carry connotations offensive to good taste and decency or which would be misleading." Cal. Veh. Code § 5105(a). The implementing regulations instruct that the DMV "shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which includes, but is not limited to, the following:
Cal. Code Regs. tit. 13, § 206.00(c)(7)(D).2 The DMV may also "cancel and order the return of any environmental license plate heretofore or hereafter issued" with a configuration that it "determines carries connotations offensive to good taste and decency or which would be misleading" based on these criteria. Cal. Veh. Code § 5105(b) ; see also Cal. Code Regs. tit. 13, § 206.12(a).
The DMV has a multi-step process for reviewing applications for environmental license plates. First, physical applications are reviewed by a processing technician. ECF No. 41-9 at 8. That technician may immediately deny the application if the requested alphanumeric configuration is "blatantly offensive." Id. Otherwise, applications are generated into California Environmental Protection Program Applicant Notifications (REG 272s) – which display the requested license plate configuration along with the applicant's name and address – and are forwarded to five initial reviewers employed by the DMV. ECF No. 41-1 at 3-4.
The initial reviewers may use several resources to determine if a configuration should be denied on the basis that it "may carry connotations offensive to good taste and decency." ECF No. 41-9 at 9. First, the DMV "has reduced [the relevant California Code of Regulations] section down to a list of reasons justifying denial." Id. The denial codes "provide specific guidance for the types of configurations that should be rejected." ECF No. 47-2 ¶ 17. The first several denial codes mirror the language of Section 206.00(c)(7)(D) ’s subparts, but other denial codes provide reviewers with specific instructions that are not found in the text of the regulation. See ECF No. 48 at 15. For example, the current denial codes indicate that configurations containing "a reference to drugs," a reference "to guns, weaponry, shooting, or an instrument normally used to inflict harm," or "a number, color, phrase, or code commonly used to represent gang affiliation," should be denied. Id. Second, the DMV has created the "Environmental License Plates Review Procedures," a manual of review procedures that contains a list of examples of specific configurations that should be flagged or denied. See Id. at 20-29. Third, "[i]f the configuration represents an unfamiliar slang term, foreign word, or acronym, or may be otherwise offensive," the reviewer conducts "additional research." ECF No. 41-9 at 9. This research includes the use of online resources such as Urban Dictionary, Google, and Google Translate. Id. Finally, if a reviewer's findings are inconclusive, the reviewer will discuss the configuration with other reviewers. Id. Applicants that are denied receive a refund and "a letter indicating the reason for the denial." Id.
An applicant who receives a denial may "write a letter to the department further explaining the meaning of the license plate configuration," which triggers a secondary review by one of four analysts at the DMV. Id. ; ECF No. 41-1 at 9-10. The analyst assesses the configuration by reviewing the applicant's letter and the same resources the initial reviewers use, and by possibly consulting with other managers or staff. ECF No. 41-9 at 9. The analyst will then create a file regarding the application and make a recommendation to approve or deny the configuration. Id. These files are reviewed by the section manager and program manager for a final determination. Id. "If the configuration is denied, a letter is sent providing a more detailed explanation of why the license plate configuration was denied." Id. at 9-10.
Plaintiffs Paul Ogilvie, James Blair, Amrit Kohli, Andrea Campanile, and Paul Crawford are California residents whose requests for personalized license plates were denied by the DMV under Section 206.00(c)(7)(D). ECF No. 1 ¶¶ 29-44. Ogilvie is an Army veteran who requested the plate configuration "OGWOOLF," which reflects his military nickname, "OG," and "his long-time interest in wolves." ECF No. 42 ¶¶ 2-4. The DMV denied this configuration because it "contained a gang reference." Id. ¶ 5. Blair, a "long-time fan of the rock band ‘Slayer,’ " requested the configuration "SLAAYRR." ECF No. 46 ¶¶ 2-3. The DMV rejected his submission on the ground that it "may be considered threatening, aggressive, or hostile." ECF No. 41-16 at 2. Kohli is "gay and established Queer Folks Records in an effort to reclaim the word ‘Queer.’ " ECF No. 44 ¶ 2. The DMV rejected his request for the configuration "QUEER" because it "may be considered insulting, degrading, or expressing contempt for a specific group or person." ECF No. 41-15 at 2. Campanile, who owns two Ducati motorcycles, requested the configuration "DUK N A," which she intended to mean "Ducati and Andrea." ECF No. 45 ¶ 3. The DMV rejected the configuration because it "is a swear word, looks or sounds like a swear word, or represents a term or phrase that may be considered profane or obscene." ECF No. 41-11 at 2.3 Crawford owns Shakespeare Pub, whose slogan is, "Real beer, proper food, no bollocks." ECF No. 43 ¶ 2. The DMV rejected his proposed configuration of "BO11LUX" because the configuration "has a discernable sexual connotation or may be construed to be of a sexual nature." ECF No. 41-12 at 3.
On March 10, 2020, Plaintiffs filed their complaint against Steve Gordon in his capacity as the Director of the DMV. ECF No. 1 ¶ 14. The complaint makes a single claim, arguing that Section 206.00(c)(7)(D) "imposes content-based and viewpoint-based restrictions on speech" and is therefore facially unconstitutional under the First Amendment. Id. ¶¶ 47, 54. Plaintiffs seek declaratory and injunctive relief as well as attorney's fees and costs. Id. at 9.
Gordon filed a motion to dismiss on June 2, 2020. ECF No. 26. On July 8, 2020, the Court held a hearing and denied the motion. ECF No. 34. Plaintiffs filed their motion for summary judgment on October 5, 2020, ECF No. 40, and Gordon filed his cross-motion for summary judgment on October 19, 2020, ECF No. 47. On October 26, 2020, Plaintiffs filed their combined opposition to Gordon's cross-motion for summary judgement and reply in support of their motion for summary judgment, ECF No. 49, and on November 2, 2020, Gordon filed the final reply brief, ECF No. 51. The Court held a hearing on the instant motions on November 18, 2020.
The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
Summary judgment is proper when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine only if there is sufficient evidence "such that a reasonable jury could return a verdict for the nonmoving party," and a fact is material only if it might affect the outcome of the case.
To continue reading
Request your trial
- In re DeVos
-
Odquina v. City of Honolulu
...on “vulgar”-the same ban present here-would not have been viewpoint-discriminatory. Brunetti offers Odquina no refuge. Odquina's reliance on Ogilvie is equally ineffective. F.Supp.3d at 920. There, the District Court for the Northern District of California held that prohibitions on vanity p......
-
Flores v. Bennett
...in its applications and is not susceptible to reasoned interpretation. Mansky, 138 S.Ct. at 1888; see also Ogilvie v. Gordon, 540 F.Supp.3d 920, 930-31 (noting the regulation banning license plate configurations that carry connotations “offensive to good taste and decency” lacked “objective......