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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT

) ROOM NO. 14
COUNTY OF MARION ) CAUSE NO. 49D14-1305-PL-016159


RODNEY G. VAWTER, et al., )
)
Plaintiffs, )
)
v. )
)
COMMISSIONER OF THE INDIANA )
BUREAU OF MOTOR VEHICLES, in his )
official capacity, )
)
Defendant. )

Plaintiffs Statement in Opposition to Motion to Correct Error

I. Introduction

On May 7, 2014, this Court entered its Order granting summary judgment to the plaintiffs
and two classes of persons similarly situated. On behalf of Class B, the Court found that the
action of the defendant (BMV) in suspending the personalized license plate (PLP) program
was void and unconstitutional and the Court ordered that the program be immediately reinstated.
(Order Granting Plaintiffs Motion for Summary Judgment Judgment at 36). On behalf of
Class A, the Court found that Indiana Code 9-18-5-2 and 140 IAC 2-5-4, which set out vague
standards for termination or revocation of PLPs, were unconstitutional and similarly found
unconstitutional portions of the non-promulgated Policy Statement that the BMV uses to assess
the appropriateness of PLPs. (Id.). The Court concluded that the Policy Statement was a rule
pursuant to Indiana law, Ind. Code ch. 4-22-2, and, consistent with a wealth of Indiana case law,
found that the Policy Statement was void because it had not been promulgated. (Id.). Even
though the statute, administrative regulation, and Policy Statement are all void this Court did not
order that the BMV cease utilizing them immediately when it restarted the PLP program.
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Instead, the Court allowed the statute and regulation to be used until new regulations are
promulgated, or four months, whichever comes first. And, the Court allowed the non-
promulgated Policy Statement, minus its unconstitutional parts, to be used for 6 months, or until
new regulations are promulgated.
In its Motion to Correct Error, the BMV raises a number of arguments that appear to
ignore the considerable leeway that the Court has given it to continue to use its unconstitutional
statute and regulation as well as its unconstitutional and void Policy Statement. The Court
obviously did this to prevent the very problems that the BMV argues about in its motion which,
at times, appears to fault the Court for giving the agency time to comply with the Judgment. The
arguments of the BMV are without merit and should be denied.
I. This Courts decision does not make Indiana a national outlier
The BMVs initial argument is that this Courts decision makes Indiana a national
outlier. (Memorandum in Support of Defendants Motion to Correct Error at 4 [Def. Memo at
4]). This argument is erroneous and ignores the precise relief issued by this Court.
It is telling that in its survey of the PLP requirements in other states that the BMV relies,
almost exclusively, on state statutes and formal regulations that set out the standards to be
applied. Yet, Indiana has been relying on a non-promulgated Policy Statement that is void under
Indiana law. The BMV cannot possibly complain that being required to follow Indiana law and
promulgate standards makes it an outlier. Nor, of course, is Indiana an outlier by being
required to have standards, both statutory and regulatory, which are constitutional.
The point that the BMV seeks to make is that, because of this Courts Judgment, it may
no longer turn down certain PLP requests that are offensive and problems will flow from this.
However, the argument ignores the precise relief issued by the Court.
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It is true that the Court has immediately enjoined small portions of the non-promulgated
policy. (Order Granting Plaintiffs Motion for Summary Judgment [Order] Judgment at 37).
However, the BMV may, for six months or until new regulations are promulgated, whichever
comes first, deny or revoke PLPs on the following grounds (the immediately enjoined portions of
the policy are struck through):
1. Refers to, relates to, or connotes sexual acts or eliminatory functions,
including but not limited to breasts, genitalia, the pubic area, and/or buttocks.
References to numbers with sexual connotations, such as 69, are prohibited
unless the combination clearly associates a year with a recognizable person, place
or thing. For example, 69 CHEVY, NAM 59, and 69 HOYA would be
accepted, whereas 69 BILL, 69 BOB, or 69 GIRL would not be acceptable.

2. Refers to, or suggests, the substance, paraphernalia, sale, use, purveyor of,
or physiological state produced by any drug, narcotic, alcoholic beverage, or
intoxicant.

3. Refers to race, religion, deity, ethnicity, gender, sexual orientation,
political party or affiliation, or governmental entity or official in a manner that is
offensive to good taste and decency. Generally accepted references to a race or
ethnic heritage (i.e. IRISH), are acceptable.

4. Is defamatory, profane, obscene, vulgar or derogatory.

5. Expresses or suggests violence or endangerment to the public welfare.

6. Duplicates another license plate or violates plate format.

7. Number and letter combinations that would substantially interfere with
plate identification for law enforcement purposes.

8. Uses linguistics, numbers, phonetics, translations from foreign languages,
or upside-down or reverse reading to reference any other prohibited numeric and
letter combination.

9. Uses or refers to a trademark, trade name, service mark, copyright or other
proprietary right in conjunction with language that promotes, advertises, or
endorses a product, brand, or service provided for a commercial purpose unless
the registrant is the verified owner or licensee of the protected mark or authorized
to use such mark. (For example, BUY COKE.)

Thus, the BMV remains free to deny PLPs that contain racial, gender-based, or sexual-
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orientation epithets that are vulgar or defamatory or that suggest violence or public
endangerment. PLPs that refer to sexual acts or eliminatory functions may still be prohibited.
This certainly does not place Indiana in the position of an outlier. After all, as noted by the
BMV, in Kansas PLPs are to be issued [u]nless the letters or numbers designated by the
applicant have been assigned to another vehicle, or unless the letters or numbers designated by
the applicant have a profane, vulgar, lewd or indecent meaning or connotation. Kan. Stat. Ann
8-132(c). In Virginia the PLP may not contain a message that is: profane, obscene, or vulgar;
sexually explicit or graphic; excretory-related; used to describe intimate body parts or genitals;
used to describe drugs, drug culture, or drug use; used to condone or encourage violence; used to
describe illegal activities or substance. DMV-Virginia Department of Motor Vehicles,
http://www.dmv.virginia.gov/vehicles/#personalized_policy.asp (last visited June 16, 2014).
The Judgment of this Court has not left Indiana in an outlier status, but has instead only
required the BMV to have standards that are both constitutional and lawful under Indiana law.
II. The BMV can complete rulemaking within the timeline established by the Court

The BMV complains that the Court has set an impossible task by requiring that it
promulgate a rule that applies and enforces the PLP program within four months, asserting that
the rulemaking process is designed to take some unspecifieed longer period of time.
(Motion to Correct Error [MCE] 5). As an initial matter, it must be stressed that the BMV is
making this argument although it has not attempted to begin the promulgation process, despite
the fact that this Court issued its decision on May 8, 2014.
More importantly, the BMVs argument is not supported by a plain reading of Indianas
Administrative Rules and Procedures Act (ARPA), Ind. Code ch. 4-22-2. Although the BMV
enumerates the steps involved in rulemaking, it does not concisely explain why they cannot be
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accomplished in the time period set out by the Court. (Defs. Memo at 14). In fact, a rule may be
promulgated in less than three months. Moreover, this Court did not in fact order that
rulemaking be completed in four months. If rulemaking is not completed within four months,
Ind. Code 9-18-5-4 and 140 IAC 2-5-4 may no longer be utilized by the BMV (Order
Judgment at 37), but the BMVs present Policy Statement (with limitations) may be used for an
additional two months (Id. at 36-37). This is sufficient.
First, the BMV must publish notice of its intent to adopt a rule that includes no more
detail than an overview of the intent and scope of the proposed rule and [its] statutory
authority. Ind. Code 4-22-2-23. This must be done twenty-eight (28) days in advance of
publication of a notice of hearing. Id. During those four weeks, the BMV has ample time to
draft its proposed rule, which may be a completely new policy or a revised version of its current
Policy Statement, so long as what is ultimately promulgated addresses the Courts concerns.
(This is discussed in greater depth below.) The BMV must submit a fiscal impact analysis
concurrent with the Notice of Intent. See Financial Management Circular # 2010-4,
http://www.in.gov/sba/files/fmc_2010-4_Administrative_Rulemaking.pdf (last visited June 17,
2014). Since the costs and profits to be had from the PLP program are known to the BMV (at
least up until the program was suspended on July 19, 2013), this requirement is not burdensome.
After 28 days have passed, a notice of public hearing must be published, stating the date
and time of the hearing and describing the subject matter of the proposed rule. Ind. Code 4-22-
2-24. Additionally, the full text must be sent for publication in the Indiana Register. Id. The
notice must be published at least twenty-one (21) days prior to the public hearing. Id. At the
point at which the public hearing may be held, seven weeks have elapsed. Notably, it has been
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about seven weeks since the Courts Order was issued. The BMV has not made any known
efforts to promulgate a rule effectuating the PLP program during that time.
After the public hearing, the BMV shall consider the comments received, but mere
attendance at the hearing or review of a written record or summary is sufficient to comply with
this requirement. Ind. Code 4-22-2-27. The proposed rule then goes to the attorney general for
approval, who is allowed forty-five (45) days, but certainly need not wait until the last minute.
Ind. Code 4-22-2-32. Once that step is completed, the governor must approve the rule within
fifteen (15) days, although he may request an additional 15 days, but need not. Ind. Code. 4-
22-3-34. The rule then must immediately be submitted to the publisher for filing and is deemed
effective thirty (30) days later. Ind. Code. 4-22-2-35 and 36. Thus only if the attorney
general and governor choose to take the longest period of time permissible under ARPA to
approve the proposed rule, which will bring the PLP program a revenue generator for the BMV
and the State back on-line, will the process extend beyond four months (and yet still less than
six months). And it can be accomplished in less than three.
The Court did not err in setting time limits for promulgation of a rule that applies and
enforces Indiana Code 9-18-5-4 and 140 IAC 2-5-4, and the Courts implication that the
rulemaking process should occur in no more than six months is entirely consistent with ARPA.
III. The Court has not ordered adoption of a particular regulation
Contrary to the assertions of the BMV, the Court has not ordered it to adopt a particular
regulation. (Def. Memo. at 11). Rather, the Court permitted the BMV to continue to use those
parts of its non-promulgated (and thus void) Policy Statement that are presently salvageable to
make determinations as to whether to approve PLP requests or to revoke existing PLPs during a
brief interim period while rulemaking is ongoing, not to exceed six months. (Order-Judgment at
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36-37). Nowhere in the Judgment does the Court direct the BMV to draft a specific rule with
particular language, nor does the BMV cite to any place in the Judgment where this occurs. It
appears that the BMV misinterprets the Courts willingness to allow it to continue to use portions
of its current Policy Statement as coterminous with an edict about the content of the actual rule.
The BMV reads this Courts decision too narrowly.
Any so-called blue-penciling of the BMVs Policy Statement by the Court has merely
saved, during the rulemaking period, those portions of the current Policy Statement that do not
offend constitutional principles. To the extent that the Court has in fact directed the BMV to use
an edited version of the current Policy Statement for a limited period of time not to exceed six
months (Order-Judgment at 36-37, it is difficult to understand how this imposes upon agency
discretion, as the BMV complains. The BMV had, at its own discretion, created a policy for
effectuation of Indiana Code 9-18-5-4 and 140 IAC 2-5-4, failed entirely to put it through
formal rulemaking, yet used the policy for approving new PLP requests and review of renewals.
It may continue, with some limitations, to do what it has long done (in contravention of the
requirement that it follow proper rulemaking procedures) for up to six months while it pursues
proper rulemaking.
There is nothing at all in the Courts decision that contains a direction that the BMV
promulgate a rule substantially similar to its current, void Policy Statement (less the blue
penciled portions). While using those portions of the Policy Statement with which the Court
takes no issue as structure for a new rule may make sense, the Court has not insisted nor ordered
the BMV to use any part of the current Policy Statement in its rulemaking. It is assumed that the
subject matter and reasons set forth in Paragraphs 1-2, portions of 4, and 5-9 of the current BMV
Policy Statement are meaningful restrictions on the issuance and renewal of PLPs that will be
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captured in a new, properly promulgated rule. However, if the BMV wants to take a different
approach, one consistent with the Courts ruling, there is no explicit prohibition on doing so.
IV. The Court did not err in concluding that Indiana Code 9-18-15-4(b) is
unconstitutionally overbroad

Indiana Code 9-18-15-4(b) allows the BMV to refuse to issue a PLP that, among other
things, carries a connotation offensive to good taste and decency, or which the BMV
otherwise considers improper for issuance. This Court properly concluded that these terms
were both unconstitutionally vague and overbroad, and not content neutral. (Order
Conclusions of Law 42-62). In its Motion to Correct Error, although reserving the right to
raise other issues on appeal, the BMV objects only to this Courts overbreadth determination.
This Court properly concluded that the statute was overbroad.
A provision is void for substantial overbreadth if there is a realistic danger that the
statute itself will significantly compromise recognized First Amendment protections of parties
not before the Court. Members of the City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 801 (1984). The danger that the overbreadth doctrine addresses is the risk that
the very existence of some broadly written laws has the potential to chill the expressive activity
of others not before the court. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129
(1992). And, as noted by this Court, numerous courts have recognized that such terms as
offensive to good taste and decency and otherwise improper, are prime examples of
overbroad and vague terms that are unconstitutional. (Order Conclusions of Law 58).
The BMV responds by arguing that there is no private conduct here and, in any event,
there is no evidence that speech has been chilled by the application of Indi ana Code 9-18-15-4.
However, as this Court noted in its decision, overwhelming case authority indicates that a PLP is
private speech, not government speech. (Id. 42). The BMV has no counter-authority to
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present. And, its argument that there has been no evidence that speech has been chilled is
misplaced. First, it is uncontested that plaintiff Jay Voigt was chilled in his ability to keep his
PLP with the message UNHOLY.
1
Moreover, the BMV cites no case that requires that there
be evidence that speech is chilled in order to raise the overbreadth of a statute. In fact, [t]he
party challenging the law need not necessarily introduce admissible evidence of overbreadth, but
generally must at least describe the instances of arguable overbreadth of the contested law.
Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, Mo., 914 F. Supp. 2d
1041, 1048 (E.D. Mo. 2012) (quoting Washington State Grange v. Washington State Republican
Party, 552 U.S. 442, 449 n.6 (2008)). Indeed, a requirement that evidence be adduced would
make no sense inasmuch as the overbreadth doctrine allows a plaintiff to raise threats to the First
Amendment rights of persons not before the court. Board of Airport Commissioners of the City
of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). The plaintiffs amply described
the overbreadth of the challenged terms. See Plaintiffs Memorandum in Support of Motion for
Summary Judgment at 20-23. The Court clearly did not err in finding the statute to be
unconstitutionally overbroad.
2

V. The BMVs severance argument is incorrect
The BMV argues that Indiana Code 9-18-15-4 is not severable from the remainder of

1
The BMV argues that Mr. Voigts freedom of speech was not impacted because he had the
opportunity to apply for another PLP. However, it is undeniable that he was not allowed to express his
desired message and this is chill. The First Amendment mandates that we presume that speakers, not
the government, know best both what they want and how to say it. Riley v. National Federation of the
Blind of North Carolina, Inc., 487 U.S. 781, 790-91 (1988).

2
The State argues that outside of overbreadth, Indiana Code 9-18-5-4 cannot be void for
vagueness as it is not unconstitutional in all circumstances. Defs. Memo at 9. However, it is clear that a
vague law that chills First Amendment rights is void on its face even when [the law] could have had
some legitimate application. Sherman v. Twp. High Sch. Dist. 214, 624 F. Supp. 2d 907, 911 (N.D. Ill.
2007) (quoting Colautti v. Franklin, 439 U.S. 379, 391 (1979) (bracketed material added in Sherman).

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Indiana Code ch. 9-18-15 and therefore requests that the Court modify its order so that the PLP
program is not restarted until after the BMV has promulgated new administrative rules. The
BMV argues that the Legislature would not have wanted a PLP program to exist at all unless the
BMV had broad authority to reject proposed PLPs.
The BMV appears to be taking a unique position for a state agency. If Indiana Code 9-
18-15-4(b) cannot be severed from the remainder of the PLP statute the result is not, as proposed
by the BMV, a delay in the effect of the judgment of unconstitutionality, but is instead a voiding
of the statute in its entirety. See, e.g., Keane v. Remy, 201 Ind. 286, 168 N.E. 10, 14 (1929)
([W]here part of an act has been judicially determined to violate the Constitution, and the
remainder of the act is not complete, and not possible of performance, the whole act is void and
invalid.). Therefore, the BMV appears to be asking that the Court go further and void the entire
PLP statute. However, there is no need to consider this as the delay built into the Judgment by
this Court allows the BMV to continue to monitor the PLP program and protect the public.
As has been stressed above, Section II, supra, new rules certainly could be issued within
the four month period allowed by the Court during which the statute and the Policy Statement,
minus its unconstitutional portions, can be used. And they can certainly be issued within the six
month period the Court has allowed the constitutional portions of the non-promulgated Policy
Statement to continue to be used. While this promulgation process goes on the Courts Judgment
allows the BMV to continue to have the authority to deny or terminate a host of problematic
plates, including: those that refer to sexual acts, eliminatory functions, genitalia, sexual
connotations, drug use, alcohol use, intoxication, being high, or those that are defamatory,
profane, obscene or vulgar, or express or suggest violence or endangerment to the public.
Therefore, the BMVs concerns appear to be misplaced. The PLP program can continue to
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operate and there is no indication that the Legislature would have not passed the PLP law with
the restrictions imposed by the Judgment.
VI. Conclusion
For the foregoing reasons the Motion to Correct Error should be denied.

____________________________
Kenneth J. Falk
No. 6777-49


__________________________
Kelly R. Eskew
No. 22953-49
ACLU of Indiana
1031 E. Washington St.
Indianapolis, IN 46202
317/635-4059
fax: 317/635-4105
kfalk@aclu-in.org
keskew@aclu-in.org

Attorneys for Plaintiffs


Certificate of Service

I certify that a copy of the foregoing was served on the below named persons by first-
class U.S. postage, pre-paid, on this day of June, 2014.

Betsy M. Isenberg
Aileen Cook
Deputy Attorneys General
Office of the Attorney General
IGCS-5th Floor
302 W. Washington St.
Indianapolis, IN 46204

_______________________________
Kenneth J. Falk
Attorney at Law