Hart v. Thomas
Filing
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MEMORANDUM OPINION & ORDER: 1. The Defendants Motion to Dismiss 14 is DENIED; 2. Plaintiff's Motion for Extension of Time 15 is DENIED as MOOT; 3. Plaintiff's Motion to Withdraw 26 is GRANTED; and 4. A scheduling order will be entered promptly. Signed by Judge Gregory F. Van Tatenhove on 3/30/2018.(CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
BENNIE L. HART,
Plaintiff,
V.
GREG THOMAS, in his official capacity as
Secretary of the Kentucky Transportation
Cabinet,
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Civil No. 3:16-cv-00092-GFVT
MEMORANDUM OPINION
&
ORDER
Defendant.
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As private citizens we cannot typically file a lawsuit against a State or Commonwealth.
This is an old idea formed under the Kings and Queens of England. The present Motion for
Judgment on the Pleadings [R. 14], made by the Commonwealth, previews important First
Amendment questions. But, the only question decided here is whether this is one of the limited
instances in which the Sovereign, the Commonwealth of Kentucky, can be sued by a private
citizen. As explained below, the answer is yes, and consequently, the Motion [R. 14] is
DENIED.
I
The Court must construe the complaint in the light most favorable to the Plaintiff, accept
his allegations as true, and draw all reasonable inferences in his favor. DirecTV, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007). Plaintiff Bennie Hart brings this case against Greg Thomas,
in his official capacity as Secretary of the Kentucky Transportation Cabinet. Hart claims he has
First Amendment protection for his choice of a vanity license plate with the letters “IM GOD.”
[R. 1 at 1.] Prior to moving to Kentucky, Hart resided in Ohio, where he displayed a
personalized license plate reading “IM GOD” for twelve years. [R. 1 at 3.] Hart chose this
personalized license plate to convey a “philosophical message concerning his views about
religion. Specifically, Hart, who identifies as an atheist, asserts that it is impossible to disprove,
via the scientific method or otherwise, any individual's assertion that he or she is ‘God’; thus,
religious belief is highly susceptible to individual interpretation.” [R. 1 at 4.]
When Hart moved to Kentucky, he applied for the same license plate. He received a
letter in March 2016, from Ainsley W. Snyder, Administrative Branch Manager for Kentucky’s
Division of Motor Vehicle Licensing, denying his application. [R. 1-1.] The letter stated the
license plate was rejected because it did “not meet the requirements of KRS 186.174 and 601
KAR 9:012, Section 5. These laws dictate that a personalized plate may not be vulgar or
obscene.” [Id.]
Next, the Freedom from Religion Foundation (FFRF) sent a letter on Hart’s behalf to the
then-Commissioner of the Kentucky Department of Vehicle Regulation requesting that the DMV
immediately approve the requested personalized plate. [See R. 1 at 5; R. 1-2.] In April 2016, the
Senior Counsel for the Office of Legal Services of the Commonwealth of Kentucky replied. [R.
1-3.] Counsel explained that the Commonwealth considers “specialized and personalized plates
to be government speech,” relying on Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239, 2243 (2015). This letter also clarified that, in fact, Hart’s requested plate was
not denied due to vulgarity or obscenity, but instead was in violation of 601 Ky. Admin. Regs.
9:012, Section 5(1), stating that plates “offensive to good taste and decency” may be recalled.
[R. 1-3.] FFRF replied to this letter disagreeing with its conclusions and distinguishing Walker.
[R. 1-4.]
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According to Ky. Rev. Stat. Ann. § 186.005, “[m]otor vehicles other than commercial
vehicles should be registered, regulated, and controlled by the Transportation Cabinet and the
Justice and Public Safety Cabinet.” Standard license plates in the Commonwealth shall have
“three (3) letters of the alphabet and three (3) Arabic numerical digits.” Ky. Rev. Stat. Ann. §
186.005 (West). For an additional fee, individuals can choose a “personalized license plate,”
which instead contains “personal letters or numbers significant to the applicant.” Ky. Rev. Stat.
Ann. § 186.174 (West). Individuals who want a personalized plate apply through the county
clerk’s office in person, but may renew their plate by mail. Id. The application and fee are
mailed to the Transportation Cabinet presumably for review, though the statute does not contain
that language. Id. Ky. Rev. Stat. Ann. § 186.174 (West) goes on to state that:
A personalized plate shall not be issued that would conflict with or duplicate the
alphabetical-numerical system used for regular license plates or any other license
plates issued in the Commonwealth, and shall not contain a combination of more
than six (6) letters of the alphabet and Arabic numerals, including spaces. A
personalized plate shall not be issued if the cabinet determines the request fails to
comply with the conditions specified in KRS 186.164(9)(c) to (g).
According to KRS 186.164(9)(c) to (g):
(9) A group wanting to create a special license plate that is not authorized under
this chapter on June 20, 2005, shall comply with the following conditions before
being eligible to apply for a special license plate:
...
(c) The group, or the group's lettering, logo, image, or message to be placed on
the license plate, if created, shall not discriminate against any race, color, religion,
sex, or national origin, and shall not be construed, as determined by the cabinet, as
an attempt to victimize or intimidate any person due to the person's race, color,
religion, sex, or national origin;
(d) The group shall not be a political party and shall not have been created
primarily to promote a specific political belief;
(e) The group shall not have as its primary purpose the promotion of any specific
faith, religion, or antireligion;
(f) The name of the group shall not be the name of a special product or brand
name, and shall not be construed, as determined by the cabinet, as promoting a
product or brand name; and
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(g) The group's lettering, logo, image, or message to be placed on the license
plate, if created, shall not be obscene, as determined by the cabinet.
Ky. Rev. Stat. Ann. § 186.164 (West). 601 Ky. Admin. Regs. 9:012, Section 5(1), cited by the
Office of Legal Counsel for the Commonwealth of Kentucky, reads:
If a personalized plate is issued through oversight or any other reason which
carries letter or number combinations offensive to good taste and decency, it shall
be recalled by the cabinet and a regular registration license plate issued under
KRS 186.050(1) shall be obtained by the owner of the motor vehicle and placed
on the vehicle.”
In response to the denial for his personalized license plate, Hart brings three causes of
action under the First Amendment. [R. 1 at 10.] Hart brings this case, claiming that 601 Ky.
Admin. Regs. 9:012 § 5 and Ky. Rev. Stat. Ann. § 186.174(3) are facially unconstitutional and
that his First Amendment right to free speech was violated when his application for a
personalized plate was denied. [Id.]
II
The Secretary, as the Representative of the Commonwealth, argues that he is protected by
the Eleventh Amendment, which reads, “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. In general, states are immune from claims brought against them by private
persons in federal court. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996);
U.S. CONST. amend. XI. The Eleventh Amendment protects states against all types of claims,
“whether for injunctive, declaratory or monetary relief.” Thiokol Corp. v. Dep't of Treasury,
State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993); see also McCormick v. Miami
Univ., 693 F.3d 654, 661 (6th Cir. 2012). States are protected by the Eleventh Amendment also
when “individual state officials are the nominal defendants but the state is the real, substantial
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party in interest.” Hall v. Med. Coll. of Ohio at Toledo, 742 F.2d 299, 301 (6th Cir. 1984); see
Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (“Individuals sued in their official capacities
stand in the shoes of the entity they represent); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
1994) (“A suit against an individual in his official capacity is the equivalent of a suit against the
governmental entity.”); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)
(“Obviously, state officials literally are persons. But a suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official's office.”).
However, there are three exceptions to Eleventh Amendment immunity. First, Congress
may abrogate a state’s immunity pursuant to its Fourteenth Amendment powers. See Alden v.
Maine, 527 U.S. 706, 756 (1999). Second, a state may waive its immunity. See Sossamon v.
Texas, 563 U.S. 277, 284-85 (2011). Finally, a state’s waiver may be invalidated under the
exception found in Ex Parte Young, 209 U.S. 123 (1908). Neither party argues that Congress has
abrogated Kentucky’s immunity here nor that the Commonwealth has waived its immunity.
Rather, Hart argues, and this Court agrees, that the doctrine set forth in Ex Parte Young applies
in this case.
Under Ex parte Young, individuals who are “officers of the state” who are violating or
threatening to violate the Federal Constitution “may be enjoined by a Federal court of equity
from such action.” 209 U.S. at 155–56, 28 S.Ct. 441. Claims brought under Ex Parte Young
cannot provide “retroactive relief,” but can only provide prospective relief. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 106 (1984). A “court may enter a prospective suit that
costs the state money . . . if the monetary impact is ancillary, i.e., not the primary purpose of the
suit.” Boler, No. 16-1684, 2017 WL 3202778, at *15. “[A] suit by private parties seeking to
impose a liability which must be paid from public funds in the state treasury is barred by the
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Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). To make the
determination of whether the relief sought is prospective or retroactive, the Court looks at
whether “money or the non-monetary injunction is the primary thrust of the suit.” S & M Brands,
Inc. v. Cooper, 527 F.3d 500, 510 (6th Cir. 2008). Therefore, to determine if a claim can
proceed, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.’” Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011)
(quoting Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635 (2002)).
Here, construing all facts in his favor, Hart has sufficiently alleged that a state officer is
violating the Federal Constitution. [R. 1 at 1.] First, neither party disputes that Greg Thomas is
a state officer acting in his official capacity as the Secretary of the Kentucky Transportation
Cabinet. [R. 1 at 2.] Second, Hart brings this case, claiming that 601 Ky. Admin. Regs. 9:012 §
5 and Ky. Rev. Stat. Ann. § 186.174(3) are facially unconstitutional and that his First
Amendment right to free speech was violated when his application for a personalized plate was
denied. [R. 1 at 10.] He claims that denying his chosen personalized plate “impermissibly
discriminates against [his] speech on the basis of content and/or viewpoint, and has chilled and
continues to chill [his] protected speech.” [R. 1 at 10.] He supports that claim by explaining
what view he intended to express with his personalized plate and providing evidence that the
Commonwealth denied his request, for as yet unclear reasons. [See R. 1 at 4.] Based on letters
from various government officials, Hart argues that the Commonwealth suppressed his protected
speech “based on ambiguous, subjective, arbitrary or discriminatory reasons.” [R. 1 at 11.]
Hart has met his burden of providing “a short and plain statement of the claim showing that [he]
is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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Also, Hart’s primary purpose for filing suit against the state is to obtain his choice of
personalized license plate and to have the corresponding statutes found unconstitutional. [See R.
1 at 11.] He only seeks costs and reasonable attorney’s fees from the state. [Id.] Though this
may ultimately cost the state money in litigation costs and general costs associated with revising
statutes, obtaining money from the state is not Hart’s primary purpose, but is only ancillary to his
primary goal of exercising his First Amendment right to free speech. See S & M Brands, 527
F.3d at 510.
In this context, “[t]he defendant has the burden of showing that the plaintiff has failed to
state a claim for relief.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The
Commonwealth contends that there is no cognizable claim because of Eleventh Amendment
immunity. As explained, this is not the case and, consequently, the Commonwealth fails to meet
its burden.
Finally, though neither party has explicitly requested this Motion to Dismiss be converted
to a Motion for Summary Judgment, both parties have presented significant briefing on whether
Hart’s First Amendment right was in fact violated. [See R. 14; R. 16.] “It is well-established
that the plaintiff must receive ‘a full opportunity to conduct discovery’ to be able to successfully
defeat a motion for summary judgment.” Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th
Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). As potentially
discoverable issues still exist, including, but not limited to, whether the regulation in question is
viewpoint neutral [R. 14-1 at 11; R. 16 at 15] and what guidelines the state relied on when
denying Hart’s application for a personalized license plate [see R. 1-1; R. 1-3], this Court will
not convert the Motion to Dismiss to one for Summary Judgment and discovery shall proceed.
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III
Accordingly, having considered the record, applicable law, and the arguments of the
parties, the Court hereby ORDERS:
1.
The Defendant’s Motion to Dismiss [R. 14] is DENIED;
2.
Plaintiff’s Motion for Extension of Time [R. 15] is DENIED as MOOT;
3.
Plaintiff’s Motion to Withdraw [R. 26] is GRANTED; and
4.
A scheduling order will be entered promptly.
This the 30th day of March, 2018.
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