The Women's Resource Network v. Gourley

• Decision Date: 20 February 2004
• Docket Number: No. CV S-03-0786 GEB PAN.,CV S-03-0786 GEB PAN.
• Citation: 305 F.Supp.2d 1145
• Parties: THE WOMEN'S RESOURCE NETWORK, Dana Serrano, and Kent Peters, Plaintiffs, v. Steven GOURLEY, in his capacity as Director of the Department of Motor Vehicles, Defendant. Yosemite Foundation, California Department of Veterans Affairs, Intervenors.
• Court: U.S. District Court — Eastern District of California

305 F.Supp.2d 1145

THE WOMEN'S RESOURCE NETWORK, Dana Serrano, and Kent Peters, Plaintiffs, v. Steven GOURLEY, in his capacity as Director of the Department of Motor Vehicles, Defendant Yosemite Foundation, California Department of Veterans Affairs, Intervenors.

No. CV S-03-0786 GEB PAN.

United States District Court, E.D. California.

February 20, 2004.

COPYRIGHT MATERIAL OMITTED

Michael David Millen, Law Office of Michael Millen, Los Gatos, CA, for plaintiffs.

Kathryn Gimple, Attorney General's Office for the State of California, Sacramento, for Steven Gourley, Director of the Department of Motor Vehicles, defendant.

James E. Houpt, William T. Darden, Margaret Carew Toledo, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, for Yosemite Foundation.

PERMANENT INJUNCTION

BURRELL, District Judge.

Plaintiffs move both for a permanent injunction and declaratory relief, seeking to invalidate numerous specialized license plates mounted on California motor vehicles. Plaintiffs contend these plates were issued through an unconstitutional, standardless statutory scheme which gives the California Legislature unbridled discretion to decide whether to authorize issuance of a plate. Each challenged plate was specifically authorized by statute. Plaintiffs state their lawsuit is brought against Defendant Steven Gourley in his official capacity as the Director of the Department of Motor Vehicles ("Gourley" or "DMV") because California has given Gourley authority to administer its license plate program. Plaintiffs seek to prevent Gourley from renewing license plates issued under the challenged statutes and from issuing any new license plate authorized by the Legislature under California Vehicle Code § 5060.¹ They also seek an order requiring Gourley to recall all plates previously issued under the statutes.

Plaintiffs commenced this lawsuit after plaintiff The Women's Resource Network ("WRN"), a private nonprofit organization, was unsuccessful in its attempts to have the California Legislature enact an enabling statute which would have permitted Gourley to issue WRN's proposed "Choose Life" license plate. These attempts were made under § 5060, which opens a speech forum for nonprofit organizations to request issuance of license plates bearing specified messages and/or graphic designs.

Plaintiffs make a First Amendment facial challenge to each statute, arguing the statutes violate the First Amendment's viewpoint neutrality principle.² At issue is whether the Legislature's denial of WRN's request for a statute authorizing issuance of its proposed plate resulted from a legitimate exercise of its licensing authority or could have resulted from an "`illegitimate abuse of censorial power.'" The Tool Box v. Ogden City Corporation, 355 F.3d 1236, 1241 (10th Cir.2004) (quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 758, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)).

This motion is brought in the wake of a preliminary injunction ("PI"), issued in Plaintiffs' favor on September 4, 2003. The PI prevents the DMV from approving any new special interest license plate for a private nonprofit organization under § 5060's special interest license plate program. (PI at 27.) The PI upheld Plaintiffs' First Amendment facial challenge to § 5060, finding that the statute lacks standards to govern what expression is allowed, and thus could be used by the Legislature to suppress unpopular speech. See Lakewood, 486 U.S. at 758, 108 S.Ct. 2138.

DISCUSSION

Plaintiffs' present motion seeks to invalidate 29 enabling statutes and the plates issued thereunder. The statutes are located in articles 8, 8.4 and 8.5 of California's Vehicle Code. Plaintiffs contend their motion should be granted without analysis of the speech in each statute or "the history and status of each plate," arguing that such analysis is unnecessary because the statutes embody private speech in a standardless private speech forum and therefore violate the First Amendment's viewpoint neutrality principle. (Pls.' Mot. at 15; Pls.' Reply at 5.) The DMV counters that the challenged speech is government speech "because California owns the license plates it issues," "controls what appears on them ...," and adopts a plate's message as its own when it authorizes a plate's issuance. (DMV's Opp'n at 1 and 11.)

Plaintiffs' First Amendment challenge should not be decided in a vacuum, absent consideration of the statutory enactments underlying the challenged speech. Analysis of speech fora is involved with a portion of Plaintiffs' challenge, and requires a determination whether California opened any of the challenged statutes for "a certain class of speakers." Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). This determination is crucial because "the government [is encouraged] to open its property to some expressive activity in cases where, if [the government is] faced with an all-or-nothing choice, it might not open the property at all." Id. at 680, 118 S.Ct. 1633. Also, when deciding whether speech is fundamentally private or government speech, it should be determined whether a government program is involved with the speech, and whether the program effectuates government policy. See generally Sons of Confederate Veterans, Inc. v. Commissioner of the Va. Dep't of Motor Vehicles, 288 F.3d 610, 619 (4th Cir.2002) ("SCV I"); see also Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1012 (9th Cir.2000) (finding that speech on school bulletin boards was government speech "[b]ecause the bulletin boards were a manifestation of the school board's policy ... and because [it] had final authority over the content of the bulletin boards ...."). Further, identification of the primary speaker is of paramount importance because, if the government is found to have engaged in authorized government speech, curtailing that speech could interfere with the government's sovereign functions, "for instance[,] to promote its own policies or to advance a particular idea...." Bd. of Regents of Univ. of Wis. v. Southworth, 529 U.S. 217, 235, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). Wrongful interference with legitimate government speech can demean a state's ability to effectuate its public policy. See generally English v. Marin Mun. Water Dist., 66 Cal.App.3d 725, 730, 136 Cal.Rptr. 224 (1977) (indicating that California's legislative enactments reflect its public policy). For these reasons, the text of, and some legislative history for, the enabling statutes which govern the challenged speech is considered.

Defendants Yosemite Foundation a/k/a/ The Yosemite Fund ("Yosemite" or "Yosemite Foundation") and California Department of Veterans Affairs ("CDVA") moved for and were allowed to intervene after the PI issued. Both intervenors oppose Plaintiffs' present motion. Yosemite argues that the specialty license plate it sponsored under § 5060's special license plate program, which was authorized by enabling statute § 5064, should not be enjoined because it constitutes government speech that "expresses the importance of the preservation and restoration of Yosemite National Park to the state of California." (Yosemite Opp'n at 26.) Yosemite also argues Plaintiffs lack standing, that the Tax Injunction Act precludes the relief Plaintiffs seek, and that Plaintiffs' claim constitutes a non-justiciable political question. CDVA argues the veterans' special license plate it sponsored under § 5060, which was authorized by enabling statute § 5068, should not be enjoined because it embodies government speech. CDVA also challenges Plaintiffs' standing.

I. Standing

CDVA argues Plaintiffs have not suffered any injury for standing purposes. Moreover, Yosemite and CDVA argue any alleged injury suffered by Plaintiffs was not caused by Gourley and cannot be remedied by him. The Court is obligated to ensure that standing exists and to raise the issue sua sponte, if necessary. San Francisco Drydock, Inc. v. Dalton, 131 F.3d 776, 778 (9th Cir.1997).

"To establish standing a plaintiff must demonstrate: (1) the invasion of a legally-protected interest; (2) a causal connection between the injury and the defendant's conduct; and (3) a likelihood that the court can redress the injury by a favorable decision." Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1094 (9th Cir.1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "The standing requirement derives from Article III, Section 2 of the United States Constitution." Johnson v. Weinberger, 851 F.2d 233, 235 (9th Cir.1988). That provision requires a party to demonstrate he or she "has suffered injury-in-fact which `fairly can be traced' to acts or omissions of the [sued] party." Id. Standing will not be found "[w]hen `[s]peculative inferences' are necessary ... to establish either injury or the connection between the alleged injury and the act challenged...." Id.

Plaintiffs Dana Serrano and Kent Peters's response relies on conclusory arguments which do not demonstrate standing. The only allegation concerning each of these plaintiffs' standing follows:

Both own a passenger car ... and would like to purchase a specialty license plate expressing their view that all life is valuable and should be cherished and respected, but are unable to purchase a specialty license plate which says `Choose Life' or a similar message consistent with their view that would support adoption.

(Comp.¶ 3.) Although the plate they desire to purchase represents a cognizable interest, the injury necessary for standing "requires more than an injury to a cognizable interest." Lujan, 504 U.S. at 563, 112 S.Ct. 2130. Section 5060 does not provide the individual plaintiffs with a speech forum since it is only open to nonprofit organizations. These plaintiffs have therefore failed to show that rejection of WRN's application invaded their "legally-protected interest." Oregon Natural...