*1 claiming insured single injured case, however, presents 12. Our liability limits would not accident Hence, coverage. comparing per UIM Nevertheless, 941(f) policy. the insured’s with either consistent unambiguous and the of the statute language notwithstanding plain coverage suggests that UIM policy,* plaintiff of the insurance terms exceed the amount damages an insured’s available whenever should be that, in and policy, the tortfeasor’s insured under actually available he have received that what would receive less an insured no event should These than underinsured. rather been uninsured had the tortfeasor opinionissued in another the reasons stated unavailing for arguments Co., 61, 819 5, 175 A.2d Vt. Allstate Insurance 2003 VT today, Colwellv. and remanded. Reversed
[819 A.2d No. 01-214 J., Skoglund, Dooley, Morse, Amestoy, JJ. Johnson C Present: Opinion February Filed * UM/UIM-coverage dispute split-limit endorsement submitted does not Plaintiff applicable provision policy. the Pawtucket Mutual relevant below Pawtucket *2 Bloomer, Bloomer, John H. P.C., Rutland, Jr. of McClallen & Plaintiff-Appellant. Sorrell, H.
William William E. Griffin, Chief General, Attorney General, Bridget C. Asay, Attorney Assistant Attorney Assistant General, Montpelier, for Defendant-Appellee.
¶ Amestoy, C.J. Plaintiff Carol Ann Martin appeals superior court’s decision upholding Department (DMV) of Motor Vehicles’ refusal to special issue her a motor vehicle license plate displaying the letters “IRISH.” We conclude that the administrative regulation upon which DMV based its ruling with, inconsistent and thus unauthorized by, the governing statute. Accordingly, we reverse the superior court’s decision.
¶ 2. This case is an example ofwhat can happen when law common sense depart. The governing statute provides that the Commissioner of “may DMV refuse to honor any [vanity plate] request might be confusing 304(d). offensive or to general public.” 23 V.S.A. Neither DMV in to refusing grant plate, “IRISH” nor the State in its argument Court, before this have asserted that “IRISH” is a word that might be offensive to the public undoubtedly general public because the — would find the assertion more Rather, offensive than the word.1 DMV’s decision, the superior decision, court’s opinion upholding that and the 1Moreover, any expertise contention gauge that DMV has either the or information sensitivity general public generated by ofthe unexplained the offense “IRISH” wouldleave why, previous years, approved fifteen requests DMV had Martin’s for an “IRISH” plate, plate, truck an “IRISH1” plates. conservation and “IRISH1” and “IRISH2” car that seeks an administrative rely upon
State’s defense both attack from constitutional program to insulate the determine a statutory obligation to removing the Commissioner’s That public.2 the general to offend plate’s potential requested obligation of such an have relieve the Commissioner we could Legislature the statute body by amending has chosen to do so no But until that doubt. those refuse currently granting Commissioner general public,” to the we confusing be or “might offensive requests that assumes powers legal uphold find a basis cannot authorizing the in the statute purportedly than those set forth greater regulation. a special when submitted 3. The instant case arose Martin choices, “IRISH” and “IRISH1.” Martin listing to DMV two
application not be stating application that her could a letter from DMV received plate request may deny any special because the Commissioner processed confusing general public.3 to the Martin offensive held before a DMV hearing, an administrative which was requested any offer evidence hearing, specific DMV did not hearing officer. At to the plate might general that the be offensive indicating requested categorical the new exclusively upon regulation’s but rather relied pubic, heritage. In her written decision exclusion of references ethnic *3 concluded request, hearing the officer upholding the denial of Martin’s a for deny request special has the to that the Commissioner the reference is heritage, to ethnic ofwhether plates referring irrespective negative a or connotation. positive
¶ court to ruling superior pursuant 4. Martin to appealed The court governmental agencies). decisions of (appeals V.R.C.P. from the State oral presented a at which both Martin and hearing held hearing, rejected the court following In its written decision argument. on the rationale: request declaratory following relief based Martin’s regulation the June 2000 amended for combinations In relevant provides part, requests general confusing to not be be offensive or vnll of letters and numbers “that public” Plates), 16I.(f) (Registration of Vt. 14 050 025-2 to 14 050 issued. Rule 8A Code Rules DMV (2000). regulation categories making list of sets forth seven a nonexhaustive 025-3 up “(4) including letters, Combination of or numbers that that will not issued, combinations heritage, religion, gender, language, to ethnic sexual race, color, refer, deity, any 16I.(f) (RegistrationPlates), or affiliation.” DMV Rule status, orientation, disability political (2002). 8A Code of Vt. Rules 14 050 025-3 “confusing” made it difficult to if its combination of letters and numbers A would be suggesting that “IRISH” is or to other similar No one is read to relation plates. identify confusing. offensive, to and the statutory authority Given ban the discrimination, constitutional mandate to avoid viewpoint regulation Commissioner’s to off the place ethnic references reasonable, table for license is statutorily authorized and constitutionally if is necessary preserve vanity the state to its license and also program patently avoid issuance of offensive license plates. Court, 5. On appeal argues to this Martin the amended
regulation invalid contrary is is to the intent the Legislature, overbroad, arbitrary. and argues Martin also that both the and statute, 304(d), governing 23 V.S.A. violate the First Amendment give United States Constitution because DMV they unfettered discretion to viewpoint applicant. discriminate based of the responds 304(d), State that the is consistent with is necessary both insulate the statute from challenges constitutional to alleviate DMV’s administrative burden. The State also contends that and, Martin’s constitutional arguments any event, were waived without merit.
I. ¶ 6. This case unusual in that it anticipation constitutional challenge that formed the superior basis court’s decision case, and the State’s defense but of the challenged regulation also Through regulation, itself. sought the State a legal resolve dilemma— how constitutionally implement does one a statute when the vanity Commissioner’s discretion issue plates must be in a grounded determination ofwhat might public, offend the given the susceptibility such statute allowing constitutional attack for designated discrimination in a forum? It nonpublic is the ofthe attempt lawyers legal State’s to address this dilemma that frames this case. sure, 7. To be the State’s sensitivity potential to the constitutional complications of a plate program is well founded. special While a plate program limiting requests to names and places negate would all but the most challenges, frivolous legislatures decision of state (and lucrative) authorize more expansive vanity plate programs *4 implicated more significant First Amendment concerns. Although courts and commentators have differed on the extent to which the establishment regime of a implicates speech free rights, there is little doubt there are some constitutional on the government’s limitations
84 Herald, Speak: The Licensed to See M. generally in this area.4 Jacobs, (2001); L. Plates, L. Rev. 72 Colo. 595 Vanity U.
Case of
(2001).
1357
Forum, 95 Nw. U. L. Rev.
Public Sensibilities
understandable,
is
State’s
strike
preemptive
though
8. But
meaning of a
plain
ignore
is free to
lawyers nor this Court
neither its
its
infirmities.
contemplation
perceived legal
of
enactment in
legislative
none,
law,
Indeed,
we have found
cited no case
and
the State has
agency
promulgate regulations
can
that an administrative
suggesting
from a
statute to save the statute
unambiguous
an
inconsistent with
Rather,
G.T., 170
State cites In re
Vt.
attack.
constitutional
potential
517,
(2000),
terms of from constitutional Control, Beverage v. Alcoholic 905 P.2d Dep’t 719 & 2021 (Utah 1995) (as court, reading must prefer with constitutional attempt agency’s interpretation), statute over unconstitutional because, discussed in more detail misplaced the statute as protect is below, 304(d) ambiguous.5 unambiguous, If a statute is an a new by adopting it attack cannot insulate from constitutional by statutory language. See Nat’l interpretation unsupported Rifle 4 determining the level Court has “forum” United States analysis employed government when the seeks restrict the First Amendment speech protection by provided Fund, LegalDef. & Educ. See Cornelius NAACP use in connection property. 2001). (1985); Inc., Perry v. 159, U.S. (property such streets and in traditional fora as Government public public speech debate) designated long tradition to public that has been devoted assembly parks (property government a nontraditional forum for fora in which purposefully opened debate) subject the First Amendment. F.3d strict under scrutiny Perry, 280 government fora which the may Other considered nonpublic properties long as the are reasonable and restrictions viewpoint-neutraL restrictions impose speech Id. meanings, the dissent to different points While the word “offensive” bemay susceptible designate on aggressive repugnant, or it even what mean out —for may may example, — the word is lined neither the word “offensive” nor side of the ball football up player ambiguous. “confusing” that statute in the context of makes
85 Reno, 122, 127(D.C. 2000) Ass’n Am. v. F.3d 216 Cir. (quoting Chevron of Council, Inc., U. S. A. Inc. v. Natural Res. 467 U.S. 842-43 Def. “ (1984), court, for proposition that ‘the as well as agency, give must ”); to the unambiguously effect intent of expressed Congress’ see also 258, 267(1967)(task Robel, United States v. 389 U.S. ofwriting legislation within constitutional bounds is “committed to Congress”); Scales v. States, 203, 211 (1961) 367 (“Although United U.S. this will Court often legislation attack, strain to construe so to against save it constitutional it carry must and will not point this to perverting purpose statute.”). obligation 10. The to refrain from rewriting a statute to it insulate courts, from constitutional attack is particularly strong, even when the reading revised the statute policy among would create new several — especially choices when policy those choices constitutional implicate (or rights. available, Where a number of choices are judicial agency) statutory necessarily restructuring implicates policy “troublesome considerations which should in the first instance dealt with by be our Legislature rather than 889, 894 this Court.” State v. 303 Rosenfeld, A.2d (N.J. 1973). reasons, For these we find unavailing argument State’s that promulgation of the challenged regulation necessary was to avoid constitutional challenge to the statute. Moreover, if even we were inclined uphold the challenged and,
regulation effect, 304(d), in § allow DMV to rewrite we not do would so here. From the beginning, Martin’s position has been that the amended 304(d). is inconsistent with For first time on appeal —and in only response to the necessity State’s constitutional defense —Martin argues that both the amended arguments
unconstitutional. Because these were not raised before the court, superior they are not preserved for here. review See Jakab v. Jakab, 575, 581, 664 261, 264 (1995) (“Even 163 Vt. A.2d with respect claims, constitutional ordinarily we require appeal the issue on below.”). raised
¶ 12. a squarely presented Absent constitutional we challenge, decline an foray make unchartered an into unsettled area constitutional law. Wilson, Compare 1077, 1080-81(8th 2001) (statute v. Lewis 253 F.3d Cir. upon relied rejecting “ARYAN-1” plate as contrary Amendment), policy denied, (2002); violated First cert. 535 986 U.S. Wilder, (E.D. v. 414, 417-18 1994) Pruitt 840 (DMV F. Supp. Va. policy banning reference to deities violated First Amendment regulated speech nonpublic viewpoint) forum based on 2001) (applicant does not have First “SHTHPNS”); Kahn v. vanity plates bearing letters right Amendment 1993) (state (Ct. 6, 11-13 Vehicles, App. 2d Rptr. Cal. Motor Dep’t of degradation, from protecting interest has substantial been offensive to would have request evidence that ample there was Court has not Notably, United States person).6 reasonable and, to vanity plates, challenge pertaining a First Amendment addressed out, neutrality is not viewpoint its law on repeatedly points dissent Pruitt, (discussing 417-18 See, F. clarity. e.g., Supp. model v. Moriches Union Free Chapel Lamb’s Ctr. analysis neutral (1993)). Dist., U.S. 384 Sch.
¶ short, constitutional In here —no direct presented 13. the situation not one that law this area —is controlling and no definitive challenge preserved that issues be to our normal rule bypass requiring us tempts 518, 523 Documents, 152, 156, 772 Vt. A.2d Cf. In re Sealed 172 appeal. (our (2001) significance of addressing issues constitutional tradition of counsels necessarily presented are and restraint only they “squarely when questions); First Amendment Herald forbearance” to broader (1980) Ass’n, 529, 533, 419 323, 326 Ellison, (although Vt. A.2d Inc. v. 138 implicated, to decisions of United States appears First Amendment clearly do not determine whether First Amendment Supreme Court exists; “the of our traditional uncertainty, violation in face of such wisdom — needlessly of that we do not decide constitutional rule self-restraint — (internal omitted)). apparent” is the citations issues all more
II. find the that Although unavailing argument 14. we State’s constitutionally necessary, promulgation challenged regulation of the was 304(d) reading § is of recognize expansive we that an administrative of 6 case suggest that was federal law —in The dissent seems DMVs by compeled onPerry 2001). Perry 280 dissent’s relance F.3d 159 particular, that In the Circuit Court of held the Vermont case, that Second vanity Appeals misplaced. bearing right to use letters did not have a First Amendment the vanity plates plate applcant rejecting argument engaged the “SHTHPNS.” Id. at that State had 163. In the applcant’s referencing scatological alowing terms while discrimination “cute” by scatological rejecting his the court concerns emphasized request, “offensive According terms.” Id. at 170. just scatological the not the difference between court, terms, the others were but rather that “cute,” and others was not the they applcant’s request Id. As the court stated, recognizable the did not include did profanities, applcant’s. easily between “shit” and the former is relevant difference profanity, “pooper” Perry Id. what court would have done with 170-71. indicates Thus, therefore offensive. done In does not event, not it would have with “IRISH.” any certainly what “MICK,” agency suggest is the reasonable for the DMVs way implement only running Legislature’s program without afoul of the First Amendment.
87 concern particular regulation implicate because the statute and First protections. Amendment rights Where citizens’ constitutional are concerned, vigilant we especially assuring must be that elected officials — — appointed and not administrators this in making policy. With mind, now principal argument challenged we consider Martin’s that the with, regulation is beyond authority by, inconsistent and thus provided 304(d), governing statute. It an agency’s is axiomatic that administrative power regulations promulgate may legislative grant extend as far as its of 204, 208(1988); authority. Georgetown Bowen v. Univ. 488 U.S. see Hosp., Inc., (“An 34, 39, (1988) In re Sys., Vt. Gas A.2d Vt. administrative agency’s rule-making authority cannot an support expansive Thus, of interpretation powers.”). its own generally while we presume validity regulations of within the agency’s authority, we will uphold an administratively adopted regulation only “where we can do so without compromising intent statute which authorized it.” In re Admin., 68, 74, Agency 1349, 1351-52 141 Vt. (1982); A.2d see Vt. Realtors, State, Ass’n 525, 530, 593 462, 465(1991) Inc. v. 156Vt. A.2d (“[W]e will countenance any agency rule that exceeds act.”). delegated under its If enabling an operates bounds, outside those, or for purposes other than by authorized enabling legislation, “this Admin., Court will Agency intervene.” In re 141 Vt. at A.2d at 1352.
¶ 16. The fundamental principle served these tenets is the doctrine separation powers. See 1A N. Singer, Statutes and Statutory *7 31.06, (5th § 1993). Construction at 544 ed. Courts have generally upheld delegations broad of authority to agencies, administrative but action that “transcends the delegation Stein, will not be sustained.” 1 J. G. Mezines, Mitchell 3.03[5], & B. (2002). § Administrative Law at 3-110 Confining delegated lawmaking within authority its intended bounds helps to assure that ultimate control policymaking over rests with the legislative branch of rather than unelected administrative officials. 1 N. Singer, Statutory 4.15, § Statutes and Construction at 166 (5th 1994); Sch., (Ohio ed. see 198, 202 Chambers v. St. Mary’s 697 N.E.2d 1998) (legislative accountability is cornerstone of democratic process that justifies general assembly’s role as lawmaker and restricts administrative rule-making general effect). to placing assembly’s policy into
¶ Here, 17. Legislature given the has the general Commissioner the assign to a combination of numbers and each letters for vehicle, registered 304(a), motor § see 23 A. V.S. and to issue vanity plates and specialty plates 304(b). safety organizations, for or service see id. “at statute, the vanity plates the Commissioner “shall issue” the
Under vehicle,” as otherwise any except motor registrant request 304(b)(1). vanity that “shall § Id. provides plates Section provided. letters that do seven or less numbers and combination of any issued” be may, The Commissioner plate. a regular-issue or resemble duplicate not however, “any that be offensive request might honor or revoke refuse to 304(d). § Id. confusing general public.” to the or ¶ allow to obtain Legislature applicants the intended to Plainly, letters, numbers and as combination of seven or less vanity plates any plate, to a regular-issue is not similar requested long Lussier, 19, 23, 757 See State v. to or 171Vt. confusing identify, offensive. (“Our (2000) construing a statute is to primary duty A.2d by examining language Legislature the intent of the discern effects, Put statute, consequences.”). along purpose, entire Commissioner, gets she wants unless differently, applicant what offensive or discretion, that would be request her determines by with the officialstate function served confusing incompatible and hence plates. license by closely intent of the statute is revealed plain 19. The may refuse
examining the critical sentence at issue: “The commissioner general or to the any request might confusing to honor be offensive the sentence does not the Commissioner the Notably, give public.” — Rather, any period. refuse to request honor discretion might “may” requests refuse to honor those be Commissioner may not words, confusing or offensive. In other the Commissioner request request might unless she determines refuse honor by This further confusing. point supported offensive or be 304(b) (d) instructing §in that the Commissioner “shall language offensive, confusing, not found to or requested plates issue” statutory criteria. otherwise outside categorical respect 20. Rather than make exclusions with the Commissioner the discretion to Legislature given plates, Legislature or any confusing. be offensive reject “request” categories, evidenced certainly knows how exclude entire 304(b)(2)(C), for requires organizations applying specialty which that is a name and “present the commissioner with emblem and does not obscene, or to the confusing general offensive or product, provided or endorse a brand service promote, advertise sale, (Emphasis belief or promote any specific religious political party.” added.) not to forth exclusions Legislature categorical elected set *8 vanity respect plates, however. with Nonetheless, challenged beyond regulation extends statutory language and permits requests Commissioner to reject vanity that are plates belong themselves inoffensive in one of several but designated categories that include potential words with the to offend. Indeed, bar, refused, in the case at request Martin’s for “IRISH” not was — because it argument offensive there was no evidence or — that effect but rather ethnicity, refers to that would topic also include offensive ethnic slurs.
¶ 22. policy ethnicity, however; DMV’s is not limited to applies it also to each other topics set forth in the challenged regulation. Plainly requests (color), inoffensive such “BLUE” (color/political as “GREEN” affiliation), (gender) or “ALLGIRLS” are excluded under the without any they determination are offensive. such Names “ROSE,” “SCARLET” and “VIOLET” are also excluded. These examples that, by demonstrate regulation, promulgating challenged — DMV is its own imposing policy respect requests from, with, one that is distinct and inconsistent one adopted Legislature.
¶ 23. policy, Under DMV’s certain topics agency considers too limits, sensitive are off if the “requests” even individual within subject potential effect, area have In no to offend. DMV has statutorily cut the required nexus between the denial of the potential to offend. I agree with dissent the Commissioner has considerable 304(d) interpret reasonable, discretion to in a way that is but blanket regulations intended to prohibit the issuance of potentially offensive vanity plates cannot be characterized as reasonable when the result is to prohibit such as words “IRISH” “BLUE.”
¶24. DMV’s
of a
promulgation
regulation containing categorical
topics
exclusions of
of their
irrespective
potential to offend
apparently
was
prompted by
against
suit
DMV
agency’s
based on the
denial
a request
for the plate “SHTHPNS.” See
Perry
¶ however, argues, Legislature, through The that the 26. State the Rules, approach on Administrative endorsed the Legislative Committee by regulation. in the The Committee minutes reveal taken DMV amended reviewed, that, the new was some meeting at the first which about the additional expressed of the Committee members concerns regulation. the The Committee decided imposed proposed restrictions meeting, at a later five members of the Ultimately, to continue its review. not to to the with one member object regulation, Committee elected dissenting. ringing endorsement ofthe hardly Committee’s actions event, Court, Committee, it the that must any In is this
regulation. regulation is challenged consistent determine whether (APA) Act requires statute. The Administrative Procedure governing 841(a). § file with the Committee. V.S.A. agencies proposed rules arbitrary, beyond authority may object Committee the rule agency, contrary Legislature, the intent of the and recommend or 842(a)-(b). 3 V.S.A. If agency proposal. that the withdraw or amend rule, any agency, to the the burden is on objects the Committee rule, or judicial action for review enforcement of the establish arbitrary, agency’s delegated part objected rule is not outside 842(b). authority, Legislature. or with the intent of the Id. inconsistent court proof, “If the fails to meet its shall declare the burden Thus, APA, objected of the rule to invalid.” Id. under portion whole authority validity proposed has no to determine the of a the Committee rather can indicate will regulation, administrative but whether regulation. to the object proposed
III. ¶ 28. Finally, the State argues challenged regulation is valid exercise of DMV’s authority because it is administratively necessary. Again, we find this argument unpersuasive. Agencies generally may not choose to ignore “their statutory mandate they believe it is administratively inefficient or infeasible.” Campbell Dep’t United States (D.D.C. Agric., 1981) 515 F. Supp. (agency cannot decide not to allow food stamp recertifications at Security Social offices because of practical so). problems they perceive doing circumstances, 29. In very limited necessity may “administrative a basis for finding implied an administrative approach not explicitly provided in the Costle, statute.” Ala. Power Co.v. (D.C. 1979). A court may uphold streamlined approaches
or procedures involving categorical exemptions not explicitly provided by statute when a case-by-case would, approach matter, as a practical *10 prevent the agency from carrying out its legislatively authorized mission. Id. But the agency’s burden justify its actions “in such a case is especially heavy.” Id. at 359.
¶ 30. The State has not met that heavy Citizen, burden here. Cf. Pub. Shalala, Inc. v. 13, (D.D.C. (FDA 932 F. Supp. 1996) failed to demonstrate administrative impossibility of applying statute’s nutrition content and health claim provisions menus). to restaurant There is no evidence that DMV could not carry out statutory its mandate without imposing overbroad categorical exclusions that sever the statutory nexus between the denial and the of requested offensiveness the plate. ¶ 31. In support of its administrative necessity argument, the State states simply that the Commissioner would be unable to handle the growing number special of plate applications without regulatory standards to implement the program. We do not suggest otherwise. DMV may promulgate regulations consistent statute, and, with the so, in doing may establish lists of combinations of numbers and letters that might be also, offensive. DMV may 304(d), consistent with exclude entire categories comprised exclusively of words that general offend the public. Cf. McMahon v. Iowa Dep’t Transp., 522 N.W.2d 55-57 of (Iowa 1994) (upholding regulation disallowing combinations of numbers and letters that have sexual connotations or that are defined in dictionaries as terms ofvulgarity, contempt, prejudice, insult, hostility, or racial or degradation); ethnic DMV, Higgins 531, 533 (Or. 13 P.3d n.3-4 2000) (en banc) Ct. App. (construing regulation defining “ethnic words” as words that refer to definable persons, class of and that ridicule support or class). superiority of that not, The agency may however, claim the the solely because by statute unauthorized policy to establish authority “with an has set DMV Legislature If the difficulty. with fraught is task this and not task, Legislature] remedy [the their impossible at 1249. Campbell, Supp. 515 F. Court.”
IV. may not the amended sum, that In we conclude “prescribes in that it the “IRISH” deny decision to support not authorized Legislature] [the which standard Co., 265 U.S. 315, 321 v. Tilden Produce Lynch to fix.” Commissioner... 1996)(“The (N.H. Sys., Ret. v. N.H. 683 A.2d see Milette (1924); not a of authority grant to an rulemaking grant of legislature’s do not by regulation.”). We modify statutory law change power that program crafting of challenge underestimate But Amendment concerns. efficiency with First administrative balances circumvent the branch challenge cannot response responsibility That making the law. responsible of Motor Legislature, Department in the not resides Vehicles. litigation, future the dissent possibility 33. Concerned about carry out administrative how us instruct the
would have vanity plate The prediction mandate. dissent’s legislative one, the uncertain litigated given is a safe will continue to be program The issue neutrality. analysis viewpoint forum of federal law on state by case, however, regulation is unauthorized is whether DMVs in this difficulty promulgating question statute. We do governing a nexus requires on a statute predicated vanity plate program may subjects categories removal of entire agency’s offensiveness. But analysis. thicket the constitutional way through one governing authorized statute. must be agency’s approach satisfy requirement. fails to current *11 stricken, and 161.(f)(4) Rule Motor Vehicle’s Department The of 19, 2001 decision is reversed. April court’s superior ¶34. Johnson, J., vanity plate In dissenting. implementing hard On place. a rock and a caught found itself between DMV program, deny “any [vanity plate] hand, agency empowered was the one general public.” to the be confusing offensive or request hand, added). federal courts 304(d) On the other (emphasis V.S.A. hold that restrictions the First Amendment interpreting are unconstitutional. on the basis of that discriminate speech agency had to a method of develop implementing program that would enable it to refuse potentially offensive applications yet arbitrary would not be appear discriminate on the Put viewpoint. plainly, basis the Commissioner had to avoid viewpoint discrimination that would result if she allowed “IRISH” but rejected Promulgating regulation “NOIRISH” or “MICK.” a that banned certain topics altogether potentially confusing” very “offensive or was likely way reasonable could implement Legislature’s vanity plate program while with the complying statute held, First Amendment This is what the trial court it requirements. should be affirmed. I respectfully dissent.
¶35. The majority narrowly confines this case to a question DMV, administrative law: whether the in prohibiting Commissioner ethnic references on vanity plates, promulgated statute, here, “IRISH,” conflict with the the plate challenged cannot be considered offensive. Its premise is that the statute is unambiguous and therefore affords no discretion to the Commissioner to blanks, fill in the so to if speak, even the reason for in the filling blanks comply with the Constitution. I depart 36. Where from the majority is that is hard for me to conceive of a more ambiguous statute than the one us. before The statute provides no definition for key two terms: “offensive”and This “confusing.” Court has held that in a “words statute without definition are to given plain their and commonly accepted use.” Shetland Props., Inc. v. Town of 189, 194, 484 (internal Poultney, 929, 932(1984) 145 Vt. A.2d quotations omitted). The however, words “offensive” and “confusing,” are susceptible variety to a of meanings, and 23 V.S.A. allowsthe agency reject requests necessarily are not confusing, offensive or “might but he.” Commissioner, therefore, has interpret considerable discretion to statute in a way Smith, 162, 169, 730 that is reasonable. See In re 169Vt. 605, 611(1999)(“[WJhere A.2d a statute is silent or ambiguous regarding a particular matter this Court will defer to agency of a interpretation statute within its area of expertise long as it represents permissible statute.”). construction of the See also Agency Solid Waste N. Cook County v. United States Army Corps Eng’rs, 531 U.S. 172-73 (2001) (holding Congress that when intends for an implement statute in a way that risks unconstitutionality, “expect[s] Court a clear result____[because Congress indication that intended that our of] prudential desire needlessly not to reach constitutional issues and our assumption that Congress casually does not authorize administrative
94 push congressional a statute to the limit of
agencies interpret authority”). statutes, moreover, agencies required by 37. are interpreting When Nat’l Labor Relations Bd. v. controlling judicial precedents.
law to follow (9th 1987) 74, 75 Cir. Ashkenazy Prop. Mgmt. Corp., (“Administrative free circuit agencies precedent are not to refuse follow originating good in cases within the circuit faith intention of [without] Court.”). proceeding by seeking particular review Agencies part reviewing must heed constitutional restrictions so, considering courts will do and an that acts without constitutional of its implications policy having offending policy risks following judicial stricken review. Between a construction of that renders it that vanity plate statute constitutional and one creates doubt, substantial constitutional “we are to take the required path in clear constitutionality.” Apache results Survival Coalition v. United States, 895, (9th 1994); Holden, 21 Blodgett F.3d 903 see also 275 (1927) (“[A]s 142, possible U.S. 148 two of a interpretations between statute, by one which would be unconstitutional and the other valid, Act.”) duty (Holmes, J., our is to plain adopt which will save the concurring).
¶ 38. majority opinion exceedingly unwieldy system envisions an law, of administrative under which alone are courts allowed to consider constitutional principles broadly-worded to “narrow the reach of a G.T., constitutionality.” statute... to avoid serious In re questions 507, 517, (2000). Vt. 758 A.2d If this framework were implemented literally, agencies would interpret statutes without limitations, considering constitutional and citizens fundamental whose rights abridged bring offending agencies were would need to to court rights. system to vindicate their The deficiencies in this unworkable exacerbated by majority’s position regulations that it will find invalid but it will the agency never advise on what will found valid. In particular the context of the statute today, majority’s before us opinion guarantees legality we will see the of the state’s program litigated over and over the state again experiments nonoffensive, different drawing methods of the line offensive and between without any guidance definitive from this Court and with each line to a plaintiff. offensive different I agree majority with the that an no
choose an
of a
interpretation
reasonably
statute
is not
available. See
Ass’ns,
457, 471 (2001) (“No
Whitman v. Am.
Trucking
U.S.
matter
doubt,
may
only
how severe the constitutional
courts
choose
between
Admin.,
text.”);
Agency
In re
reasonably
available
interpretations
(1982)(“[C]onstruction
68, 74-75, 444
141 Vt.
A.2d
of statutes
by those
with their execution
charged
will be followed unless there are
indications that the
If
compelling
wrong”).
vanity plate
construction is
had unambiguously
reject
statute
directed that DMV
those
actually offensive,
applications
vanity plates
that were
DMV probably
*13
permitted
categorical
would not have been
to establish
prohibitions based
matter,
agency American
subject
on
as it has done. Unlike the
in
Trucking, DMV is not
a statute in a
interpreting
way that “contradicts
in
quite
what
our view is
clear.”
¶ 40. To the extent
majority
that the
insists that the vanity plate
statute must be construed as written without reference to authoritative
decisions,
constitutional
majority
is advocating
approach
an
statutory construction that conflicts with the approach
by
taken
United
Supreme
States
Court in
state
construing
statutes imposing
restrictions on free speech. In the context of a
challenge
facial
to a state
statute,
obscenity
the Supreme Court
reads
statute in conjunction
with authoritative state and federal
In the
decisions.
absence of evidence
to the contrary, the
Court
Supreme
presumes that the state law will be
in
applied
accordance with the
by
limitations articulated
court precedents.
The classic
example
analysis
this
in the First Amendment context is the
Illinois,
Ward v.
case
(1977),
431 U.S. where the United States
Supreme Court
an
upheld
Illinois obscenity statute that would have been
unconstitutionally overbroad if it had not been construed to incorporate
judicial
case,
California,
Miller v.
precedents. An earlier
413 U.S.
(1973), had
requirement
established a
that a state obscenity law “as
written or authoritatively construed” (emphasis
added)
had to delineate
with specificity the kinds of sexual conduct
description
representation of which the state
In its Ward
proscribe.
intended to
decision, the United States Supreme Court held that the Illinois statute
was not unconstitutionally
though
overbroad even
the statute on its face
failed to identify specifically the kinds of sexual conduct the depiction of
Ward,
which was to
prohibited.
Supreme
U.S. 774-76.The
Court
found that
prior
decisions of the Illinois
Court
the Miller
incorporated
guidelines
statute,
obscenity
into the
the Illinois
Ward,
statute was constitutional.
¶ 41. I read to Ward stand for the proposition rulings of federal courts and this Court are relevant to the appropriate construction of the decisions are relevant judicial statute. Authoritative
vanity plate that is interpreting discretion when statute agency’s should an guide is a vanity plate program for Vermont’s special Of relevance ambiguous. vanity plate Vermont’s examining Circuit decision whether Second This prior speech. an unconstitutional restraint represent restrictions 2001), decision, 159, 169-70, 172-73 Cir. v. Perry must be vanity plates restrictions the context of any speech holds that neutral, of the statute. supporting interpretation DMVs speech makes clear that the free interests Perry 42. The decision physically are “Because are vanity plates plates at stake in limited. interests, including that of shape by restricted size and state’s identification, vanity highly extremely are a limited and vehicle Nevertheless, means of Id. at 168. whenever expression.” constrained any way, First limiting expression becomes involved paramount. developed Amendment concerns become Federal courts have as “forum to determine what analytical analysis” types an method known analysis, forum all permissible. restrictions Under speech forum, designated is classified as a government property nonpublic See, e.g., Legal or a forum. Cornelius v. NAACP publicforum, Def. Fund, Inc., 802 (1985); Perry Perry & Educ. 473 U.S. Educ. Ass’n v. ’n, 37, 45-46(1983); McDonald, 280 Local Educators ’Ass 460 U.S. *14 speech depends upon F.3d at 166. Whether a restriction is permissible in play. what kind of forum is vanity plate program 43. The Second Circuit reviewed Vermont’s
2001,
forum,
and concluded that Vermont
are a
as
vanity plates
nonpublic
forum,
McDonald,
to a
for the
v.
opposed
public
following
Perry
reasons.
First,
goal
issuing vanity plates,
¶ 44. The reasonableness
easily
standard is
met in the
vanity
case of
plates. The interest of the State in not
alienating
public
members
who
government
see
property being used to send a message they find
confusing
offensive or
is sufficient. Because the vanity plate restrictions
do not prevent motor vehicle owners from communicating messages on
their automobiles through
stickers,
the use of bumper
the State can
demonstrate
the regulation
is reasonably
“directed not
suppressing,
from,
but to disassociating the
[plaintiff’s] speech.”
[state]
Communications,
Cohen,
Gen. Media
Inc. v.
n.10
1997);
v.
see also
Forum, L. Rev. 95 Nw. U. meeting this it is concern with government, hurdle for the difficult ethnic banning all regulation the that led DMV to issue requirement in this case. that is at issue terms neutrality as viewpoint interpreted Circuit has 46. The Second as subject, on a speech particular government prohibit
permitting
expression
particular
prohibit
does not
long
as the
McDonald, 280 F.3d
v.
subjects. Perry
permissible
otherwise
views about
reasonably restrict
may
“the government
(explaining
at 170
content,
on
but not
in a
forum on
basis
activity
nonpublic
expressive
R.R.
also Lebron v. Nat'l
See
speaker’s viewpoint”).9
of the
basis
1995)
Amtrak’s
650, 658-59
(upholding
Passenger Corp.,
as
on an Amtrak-owned billboard
advertising
on
categorical
political
ban
being
than
used to
subject
entire
rather
because ban covers
permissible
views).
held
bans have been
Although categorical
certain
screen out
neutral,
and content
viewpoint regulation
the line
viewpoint
between
Court has noted
always
clear. The
regulation is not
discrimination,
of content
an
form
viewpoint regulation
impermissible
is
instead,
but,
that certain
“either-or” distinction
that there is no
suggesting
discrimination.
viewpoint
restrictions are unlawful as
of content
types
long
...
not an effort to
[are]
restricted as
as the restrictions
expression merely
suppress
omitted)).
(internal
view.”
officials oppose
speaker’s
quotations
304(d)’s
Perry
recognizing §
v. McDonald decision
majority
of the
emphasizes
parts
Perry
v. McDonald
nothing
to “offensive”
It asserts that
reference
precludes
plates.
rejecting
agree
including
among
I
offensiveness
the criteria for
from
plates.
judgment
its
does not
on
how DMV must
Second Circuit
exactly
interpret
vanity plate
pass
egregious
regulation
cases less
regulation
constitutional muster in
to ensure that
passes
Perry
unwavering,
v.
bearing
in its
McDonald
is
however,
then a license
profanity.
cannot
as state-issued
Vermont
insistence that in
forum such
nonpublic
vanity plates,
Perry
99 Rosenberger 819, 829(1995) v. Rector & Univ. of Va., Visitors 515 U.S. of (“Viewpoint discrimination is... an form egregious of content government discrimination. The must from regulating speech abstain when the specific motivating ideology opinion or the or perspective of the speaker restriction.”). is the rationale for the
¶ 47. As the maj ority observed, in Rosenberger the distinction between content viewpoint discrimination “is not a precise one.” Id. at 881. This imprecision law, makes for decisions, unclear inconsistent and as the demonstrates, case before today us creates uncertainty about the constitutionality of government programs. Nowhere is the murkiness of viewpoint term neutrality more apparent than a of review case law involving vanity plates where state governments have unsuccessfully tried to defend rules restricting plate Wilson, content. See Lewis v.
1077, 1080-82(8th 2001) (striking Missouri statute prohibiting plates that are “contrary to public policy” as discriminating on the basis viewpoint ordering state to issue plate); ARYAN Sons of Confederate Veterans, Holcomb, (W.D. Inc. v. 2001) 129 F. 2d Supp. 946 Va. (finding impermissible viewpoint-based discrimination in Virginia a statute prevented that had the Sons of Confederate Veterans from placing their logo, which incorporates the Confederate battle flag, specialty on a plate); Wilder, license 414, 417-19(E.D. Pruitt v. 1994) 840 F. Supp. Va. state (ordering to issue “GODZGUD” plate despite ban on references to deities barring references to deities while allowing other types religious speech discriminates on the basis of the speaker’s viewpoint).
¶ 48. None of these vanity plate decisions provides a clear definitionfor
the term “viewpoint discrimination.”10
general
Two
principles can be
gleaned
them, however,
from
about the factors that courts look to as
possible
indications of
viewpoint
First,
neutrality violations.
the more
specific a prohibition is within a broad category, the more likely it is to be
viewpoint discrimination instead of a permissible
(i.e.,
content restriction
religious speech can be banned entirely, but references to
deities
has
been found to violate viewpoint
Second,
neutrality).
must
10Nor can a clear definition be found in the United States
Court’s
forum
Supreme
nonpublic
jurisprudence. The
Court has
over the
split
repeatedly
proper application
since
requirement
was
viewpoint
introduced as the
neutrality
concept
required
Ass’n,
standard for a
Educ.
(5-4 decision)
forum. See
nonpublic
provide discrimination. viewpoint of more a source probably neutral” is “viewpoint The term Nevertheless, my reading judicial decisions. clarity than confusion all banning that DMVs leads me to conclude the case law the test for meets ethnicity vanity plates references to for DMV staff standard crystal-clear neutrality. regulation provides bias towards preventing possible evaluating plate applications, to use The motivation for the ban them all. by banning or another ethnicity one to take a controversial ethnicity simply but particular not to insult By banning all plates. license discourse off of state-issued area of not be ensured that decisions will ethnicity, references *17 arbitrary viewpoint-based.
¶ a method that DMV could use The never majority proposes 50. rejected plates ensure that all were vanity plates that would both evaluate 304(d)) (in in Legislature intended “offensive” whatever sense “may that DMV neutrality. majority proposes The viewpoint ensure might of numbers and letters establish lists of combinations exclusively of categories comprised entire exclude [and] offensive... ¶ Ante, majority's at 31. general public.” offend words Any list neutrality out window. effectively viewpoint throws proposal to draw the lines reflect the of its makers as where viewpoint would positive insults and what terms are terms of what terms are ethnic expressions pride. indicated to DMV that specifically has not Legislature implementing the First Amendment ignore
wishes the neutrality, requirements Given the vanity plate program. certain took justified promulgating DMV was the table. categories containing potentially offensive terms off Dooley joins Justice this dissent. 52. I am authorized to state that