Judge to rule on vanity plate program

(WISH Photo, file)

INDIANAPOLIS (WISH) – A Marion County Judge is expected to rule by the end of the month on when Indiana drivers can begin applying for new vanity license plates again. The decision follows a court hearing on the matter Wednesday.

The legal battle surrounding the program has been ongoing since July when former BMV Commissioner Scott Waddell suspended the state’s personal license plate (PLP) program following a lawsuit filed by Greenfield Police Corporal Rodney Vawter.

Vawter claimed the agency’s decision to revoke his personalized plate, which reads “0INK” next to a Fraternal Order of Police logo, was unconstitutional.

The American Civil Liberties Union, which filed the lawsuit on Vawter’s behalf, filed a motion in November requesting a summary judgment, or immediate ruling in the case. The motion contends that “there are no contested issues of fact,” and that Vawter and others in the class action lawsuit are entitled to “appropriate injunctive and declaratory relief.”

The motion for summary judgment comes in the wake of an I-Team 8 investigation in October that found inconsistencies in how the BMV decides what personal license plate requests to approve and deny.

ACLU Attorney Ken Falk cited many of the examples uncovered by I-Team 8′s investigation during Wednesday’s hearing before Judge James Osborn, arguing that decisions are made arbitrarily by an appointed panel of BMV employees using a “rough guideline” of examples. The BMV admitted that plate approval requests “may depend on who is making the decision that day,” according to depositions cited in court.

“That’s a First Amendment violation,” Falk told I-Team 8 following the hearing. “The standards governing plates are so vague, so amorphous, and so subject to individual discretion, that’s it’s unconstitutional. And, that’s demonstrated by the examples of what plates are approved and what plates are not approved.”

Falk also told the Judge that the BMV’s policy on how personal plates are approved and denied is not available to the public, as required by law. He also argued the BMV’s commissioner does not have the legal authority to suspend the program.

“This is a program that was established by the state legislature, and no agency head has the right to say we’re not going to have it anymore. That’s exactly what the commissioner said here, and that’s beyond his powers,” he said.

Falk asked the Judge to order the program to resume under new, constitutional guidelines within 30 days.

But, the BMV, represented by the Indiana Attorney General’s office, argued that Vawter had not appealed his plate revocation prior to filing his lawsuit, as required by Indiana law. It also argued that since its plate approval process relies on a “policy” rather than a “rule” it does not have to be disclosed to the public in order to be valid.

“The question is: is this government speech or private speech,” said Deputy Attorney General Betsy Isenberg in court. “License plates belong to the state. That makes the plate, and everything on it, government speech.”

“I just think that’s wrong,” Falk responded. “There’s no case in America that supports that, and there are many, many cases that say exactly to the contrary. It’s silly to argue that when I put “GO IU” on my plate that that’s government speech,” Falk responded. The plate is owned by the government, sure. But, as I said in court, so are parks. And, no one would think that if I’m protesting in a park that somehow that becomes government speech.”

Both sides have asked for an immediate ruling on their behalf. Judge Osborn asked both sides to submit their final court orders by April 21. His ruling is expected to be issued shortly after that, Falk said.

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