Sons of Confederate Veterans, Inc. v. Glendening, Civil Action No. S-97-178.

• Citation: 954 F.Supp. 1099
• Decision Date: 24 February 1997
• Docket Number: Civil Action No. S-97-178.
• Parties: SONS OF CONFEDERATE VETERANS, INC., et al., Plaintiffs, v. GLENDENING, et al., Defendants.
• Court: U.S. District Court — District of Maryland

Page 1099

954 F.Supp. 1099

SONS OF CONFEDERATE VETERANS, INC., et al., Plaintiffs, v. GLENDENING, et al., Defendants.

Civil Action No. S-97-178.

United States District Court, D. Maryland.

February 24, 1997.

David R. Melton, Rutherford Institute, Charlottesville, VA, David N. Pasti, Rockville, MD, for Plaintiffs.

J. Joseph Curran, Jr., Atty. Gen., Maureen M. Dove, Asst. Atty. Gen., Baltimore, MD, Edward R.K. Hargadon, Asst. Atty. Gen., BWI Airport, MD, Jonathan W. Action, II, Asst. Atty. Gen., Motor Vehicle Admin., Glen Burnie, MD, for Defendants.

Arthur B. Spitzer, Thomas M. Gordon, ACLU of National Capital Area, Washington, DC, Susan Goering, Dwight H. Sullivan, ACLU of Maryland, Baltimore, MD, Amicus Curiae.

MEMORANDUM OPINION

SMALKIN, District Judge.

This action is before the Court on Plaintiffs' motion for preliminary injunction. The Defendants have opposed the motion, and they have also moved for summary judgment. The issues have been briefed, under an expedited scheduling order, by the parties. In addition, the American Civil Liberties Union of Maryland and the American Civil Liberties Union of the National Capital Area have filed a reply brief amici curiae. In view of the thorough briefing, no hearing is necessary under the Rules of this Court. Local Rule 105.6., D.Md. Although, ordinarily, a hearing on a motion for preliminary injunction is appropriate, this Court will decide this motion on the written memoranda, because there are no disputes of fact. Securities and Exchange Comm'n v. Graye, 156 F.Supp. 544, 547 n. 3 (S.D.N.Y.1957); cf. Lone Star Steakhouse & Saloon v. Alpha of Virginia, 43 F.3d 922, 938 (4th Cir.1995); United States v. Richlyn Laboratories, Inc., 822 F.Supp. 268, 271 (E.D.Pa.1993); United States v. Production Plated Plastics, Inc., 762 F.Supp. 722, 729 (W.D.Mich.1991), opinion adopted, 955 F.2d 45 (6th Cir.), cert. denied, 506 U.S. 820, 113 S.Ct. 67, 121 L.Ed.2d 34 (1992).

The Plaintiffs in this action are The Sons of Confederate Veterans, Inc., a Tennessee corporation ("SCV"), The Sons of Confederate Veterans, Inc., Maryland Division ("SCV-MD"), Peter W. Orlebeke, the Commander-in-Chief of the SCV, and Patrick J. Griffin, III, the Lieutenant Commander-in-Chief of the SCV and a member of SCV-MD. The SCV is a non-profit, historical, educational, and benevolent organization whose membership consists of men who can demonstrate genealogically that one of their ancestors served honorably in the Confederate armed forces in connection with the War Between the States, or the Civil War, as it is variously known. (Cmplt. ¶ 10).

The Defendants are the Governor of Maryland, the Secretary of the Department of Transportation of Maryland, and the Administrator of the Motor Vehicle Administration ("Administrator"). The Motor Vehicle Administration ("MVA"), a unit of the Department of Transportation, is responsible for, among other things, registering motor vehicles and issuing registration ("license") plates to vehicles registered in Maryland. As part of its duties, the MVA may issue special registration plates for qualifying non-profit organizations. Md.Code Ann., Transp. II § 13-619 (1992 & Supp.1996). These "organization" plates may take the form of either: a "non-logo" plate, bearing a special tag number and the name, initials, or abbreviation of the name of the organization; or a "logo" plate, bearing a special tag number, the name, initials, or abbreviation of the name of the organization, and an emblem or logo that symbolizes the organization. Md.Code Ann., Transp. II § 13-619(g)(I) and (ii); COMAR 11.15.19.03A.

To qualify for organization plates, a motor vehicle owner must satisfactorily demonstrate that he or she is a member of a nonprofit organization and is in compliance with MVA regulations. Md.Code Ann., Transp. II § 13-619(c)(1). In addition, at least twenty-five owners of vehicles in a particular class must apply for the special registration plates, and at least twenty-five such plates must be issued initially. Md.Code Ann., Transp. II § 13-619(c)(2). The vehicle owner must also pay a fee of $15 for the special organization registration plates. Md. Code Ann., Transp. II § 13-619(e); COMAR 11.15.02.

Although MVA regulations do not specify any criteria for accepting or rejecting the submission of an organization's logo, the MVA apparently relies for this purpose on criteria set forth under the COMAR regulations for issuance of personalized registration ("vanity") plates. (Defs.' Opp'n at 3-4). Under these "adopted" regulations, the Administrator has the discretion to refuse to issue, to cancel, or to recall a plate if, among other things, it could be considered objectionable or offensive as a term of bigotry, a term of hostility, an insulting or derogatory term, or a racially degrading term. Id.; COMAR 11.15.07.01(5).

In June, 1995, forty-two members of the SCV-MD applied to the MVA for organization logo plates. (Pls.' Mem. in Supp. at 3). The requested plates were to bear the name "Sons of Confederate Veterans" under the tag number and a logo depicting the Confederate battle flag bounded by the name "The Sons of Confederate Veterans" and the year "1896." (Pls.' Mem. in Supp. Ex. 6). The Confederate battle flag is an element of the registered trademark of the SCV and has been used by the organization as its symbol for over 100 years. (Pls. Mem. in Supp. at 3). On December 6, 1996, the MVA, without objecting to the logo, authorized and issued 78 license plates containing this design. (Cmplt.¶ 23).

After the SCV-MD organization plates were issued, the MVA received "numerous complaints" about them. (Cmplt.¶ 60). In response to the complaints, the Administrator informed Mr. Griffin by letter dated January 2, 1997, that the MVA "was withdrawing its approval to the Sons of Confederate Veterans Organization to display the special license plates as they are currently designed" and that it was recalling such plates already issued. (Pls.' Mem. in Supp. Ex. 11). The Administrator explained that his decision was "based on numerous, substantial complaints we have received in recent days about the apparent negative racial connotations of the logo design displayed on the plate." Id. The SCV-MD was invited, however, "to submit logo artwork with an alternative design that is not perceived to be racist." Id.

Despite the MVA notice, on January 14, 1997, Mr. Griffin applied for an SCV-MD organization plate for one of his vehicles. (Cmplt.¶ 80). The request was denied. (Cmplt.¶ 83). On January 31, 1997, Mr. Griffin again received a letter from the MVA informing him that the SCV-MD organization plates were being recalled and instructing him to return his plates. (Pls.' Mem. in Supp. Ex. 16). The MVA offered to replace the plates being recalled with a non-logo plate bearing only the name "Sons of Confederate Veterans" and renewed its offer to replace the plates with a new logo plate containing "artwork that is not perceived to be racist." Id. The MVA has voluntarily suspended the recall effort until February 26, 1997, pending the present decision of this Court.

On January 20, 1997, the SCV, the SCV-MD, Mr. Orlebeke, and Mr. Griffin sued the Defendants, in their official capacities, for suspending the issuance of the SCV-MD organization logo plates and ordering the recall of previously issued SCV-MD plates. In their five-count Complaint, the Plaintiffs allege a violation of their rights to free speech as guaranteed by the First and Fourteenth Amendments and 42 U.S.C. § 1983 (Count I), a violation of the equal protection clause guaranteed by the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983 (Count II), a violation of their rights under the Ninth Amendment and 42 U.S.C. § 1983 (Count III), a procedural due process violation under the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983, based on the proposed denial of the special registrations (Count IV), and a procedural due process violation under the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983, stemming from the recall of already-issued license plates in which Plaintiffs allegedly had a property interest (Count V). The Plaintiffs seek a declaratory judgment, a mandatory injunction that the MVA continue issuing SCV-MD logo plates, a prohibitory injunction restraining the MVA from recalling the logo plates, nominal and compensatory damages for the intentional violation of Plaintiffs' constitutional rights, and reasonable attorneys' fees and costs under 42 U.S.C. § 1988.

On February 3, 1997, the Plaintiffs filed a motion for preliminary injunction, in which they argued that the MVA's actions constituted an impermissible content-based and viewpoint-based restriction on speech and an unconstitutional prior restraint. The Defendants opposed the motion, arguing that, because the organization logo plates constitute a nonpublic forum and because the MVA's actions were both reasonable and viewpoint neutral, there was no First Amendment violation. The Defendants also moved for summary judgment on all counts in the Complaint.

Although this case is before the Court on a motion for preliminary injunction, because there are no disputed facts, the Defendants have requested that the Court forego ruling on the preliminary injunction motion and reach the merits of the issues. (Defs.' Opp'n at 2). Ordinarily, on such a motion, this Court would consider whether the Plaintiffs had made the requisite showing to warrant the issuance of a preliminary injunction, but the Defendants' request has obviated that need. See Walsh v. Local Board No. 10, Mount Vernon, New York, 305 F.Supp. 1274, 1279 (S.D.N.Y.1969) (treating a motion for preliminary injunction as a motion for summary judgment and granting plenary relief on the merits where there were no genuine issues as to any material fact requiring either an evidentiary hearing or a trial on the merits). Also under Fed.R.Civ.P. 65, a hearing on a motion for preliminary injunction may be consolidated...