2012-624, David Montenegro v. New Hampshire Division of Motor Vehicles

compel the respondent, New Ha mpshire Division of Motor Vehicles (DMV), to Superior Court (Lewis, J.) dismissing his petition for injunctive relief seeking to CONBOY, J. The petitioner, David Montenegro, appeals an order of the

Union, as amicus curiae. Galdieri on the brief, and Mr. Galdieri orally), for New Hampshire Civil Liberties Nixon Peabody LLP, of Manchester (David A. Vicinanzo and Anthony J.

for the respondent. general, on the brief, and Richard W. Head, associate attorney general, orally), Michael A. Delaney, attorney general (David M. Hilts, assistant attorney

David Montenegro, self - represented party, by brief and orally.

No. 2012 - 624 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

July 3, p. 2 2012, the trial court upheld the DMV’s denial of the petitioner’s and the First Amendment to the United States Constitution. By order dated guaranteed under both Part I, Article 22 of the New Hampshire Constitution plate. He also argued that Saf - C 514.61 (c)(3) violates the ri ght to free speech permanent injunction enjoining the DMV from recalling the vanity registration issue him a vanity registration plate with the text “COPSLIE,” as well as a T he reafter, the petitioner sought an injunction directing the DMV to

plates. surrendered the “GR8GOVT” vanity registration plate for standard registration with the alternative text “GR8GOVT.” That same day, t he petitioner first choice as “insulting,” but issued the petitioner a vanity registration plate “GOVTSUX,” “SEALPAC,” and “GOVTLAZ.” The DMV denied the petitioner’s choices, in order of preference, as follows: “GR8GOVT,” “LUVGOVT,” This time, he listed “COPSLIE” as his first choice, but also provided alternative On August 30, the petitioner again applied for a vanity registration plate.

reasons which were set forth” by t he director. and agreed with the DMV’s “decision to deny the license plate, for the same pet itioner, explaining that the c ommissioner had re viewed the petitioner’s letter registration plate. On July 14, the c ommissioner’s o ffice responded to the reconsideration of the DMV’s decision concerning his application for the vanity On July 9, t he petitioner wrote to the commissioner of s afety seeking

reasonable person would find offensive to good taste”). . . . registration plate shall . . . [n]ot be ethnically, racially or which a offensive to good taste.” See N.H. Admin. Rules, Saf - C 514.61(c)(3) (“[a] vanity Saf - C 514.61. He conclu ded that “a reasonable person would find COPSLIE the petitioner’s appeal, citing the New Hampshire Code of Administrative Rules, p. 2 2010. See N.H. Admin. Rules, Saf - C 514.61(e). On May 12, t he director denied T he petitioner appealed to the director of the DMV by letter dated May 5,

because several DMV employees believed the text to be “insulting.” plate was “cops lie.” That same day, t he petitioner’s application was rejected his application that the intended meaning of the requested vanity registration reading “COPSLIE.” See RSA p. 2 261:89 (Supp. 2013). T he petitioner stated on On May 4, 201 0, the petitioner applied for a vanity registration plate

I. Background

remand. denying the petitioner’s requ est is unconstitutionally vague, w e reverse and to free speech. Because we find that the regulation relied upon by the DMV in “COPSLIE,” and arguing that the DMV’s denial of his request violated his right issue him a personalized vanity motor vehicle registration plate reading p. 3 3

Constitution. Lovell v. Griffin, p. 3 303 U.S. 444, 450 (1938). applies to the states through the Fourteenth Amendment to the United States passage of laws “abridging the freedom of speech.” U.S. CONST. amend I. It Similarly, the First Amend ment to the United States Constitution prevents the ought, therefore, to be inviolably preserved.” N.H. CONST. pt. I, art. 22. liberty of the press are essential to the security of freedom in a state: They Part I, Article 22 of our State Constitution provides: “Free speech and

A. Forum Analysis

reasonable person would find offensive to good taste.” See id. language in the regulation prohibiting vanity registration plates “which a petitioner has not appealed that finding, we confine our analysis to the ethnicity or race.” See N.H. Admin. R ules, Saf - C 514.61 (c) ( p. 3 3). Because the did not “squarely challenge the regulatory restriction of plates related to reasonable person would find offensive to good taste,” and that the petitioner challenge was to t he regulation prohibiting vanity registration plates “which a generally to Saf - C 514.61 (c) (3), the trial court found that the petitioner’s We begin by noting that, although in his brief the petitioner refers

Dev., 16 p. 3 3 N.H. 215, 220 (2012). regulations de novo. See Doyle v. Comm ’ r, N.H. Dep’t of Resources & Economic aid in our analysis, id. at 233. We review the constitutionality of state State v. Ball, 124 N.H. 226, 231 - 32 (1983), and rely upon federal law only to We first address the petitioner’s claims under our State Constitution,

the grounds that the regulation is unconstitutionally vague and overbroad. viewpoint.” The petitioner also raises a facial challenge to Saf - C 514.61(c)( p. 3 3) on neutral, for what one considers ‘offensive’ is fundamental ly a matter of “nonpublic forum,” the restrictions in Saf - C 514.61(c)(3) “are not viewpoint interest. In the alternative, he contends that, if vanity registration plates are a plate was not narrowly tailored to serve a legitimate or compelling government “designated public forum” and that the DMV’s denial of his vanity registration Constitutions. He contends that vanity registration plates constitute a the DMV did not violate his free speech rights under the State and Federal On appeal, the petitioner argues that the trial court erred by ruling that

II. Analysis

followed. petition. The petitioner’s motion to reconsider was denied, and this appeal to free speech under the State or Federal Constitution s, and dismiss ed the requested vanity registration plate, finding no violation of the petitioner’s right p. 4 4

intend to create designated public forum when it established vanity license 51 p. 4 4.61 (c) (8). See Perry, 280 F.3d at 167 (determining that Vermont did not “vehicle identification,” s ee RSA 259:85 (2004); N.H. Admin. R ules, Saf - C the primary function of vanity registration plates is to serve as a means of (quotation s and ellipsis omitted)). Moreover, as the petitioner acknowledges, members must then, as individuals, obtain permission to use” forum eligibility for access to the forum to a particular class of speakers, who se (4th Cir. 2002) (explaining that in nonpublic forum “government reserve[s] Confederate v. Comm’r of Va Dep t of Motor Vehicles, 288 F.3d 610, 622 n.1 0 s ee RSA 261:89; N.H. Admin. R ules, Saf - C 514.61(c), (d). See Sons of that individuals must obtain permission in order to gain access to the forum, characterizing vanity registration plates as a des ignated public forum given 1079 (8th Cir. 2001). Nonetheless, w e express some skepticism a bout for Jesus, Inc., 482 U.S. 569, 573 - 74 (1987); Lewis v. Wilson, 253 F.3d 1077, facially unconstitutional regardless of the forum. See Airport Comm’rs v. Jews because we conclude that the challenged restriction in Saf - C 514.61(c)(3) is We need not decide what type of forum a vanity registr ation plate is

effort to suppress expression based on the speaker’s viewpoint). restrictions on speech in a nonpublic forum must be reasonable and not an reasonable and viewpoint neutral. See id. at 312 - 13 (explaining that constitute a nonpublic forum and therefore any restrictions need o nly be state interest). The DMV disagrees, ar guing tha t vanity registration pla tes scrutiny and survive only if they are narrowly drawn to achieve a compelling restrictions on speech in a designated public forum are subject to highest government interest. See Hippo P ress, 150 N.H. at 312 (explaining that vanity registration plates must be narrowly tailored to serve a compelling forum. Thus, he contends that any restricti ons on the messages displayed on vanity registration plates, the State intended to create a designated public public forum. The petitioner argues that by enacting RSA 261:89 to allow for The parties do not dispu te that vanity registration plates are not a traditional ‘forum analysis.’” Id.; see also Hippo P ress v. SMG, 150 N.H. 30 p. 4 4, 312 (2003). forum, and the nonpublic forum and – has developed a body of law styled categories of forums – the traditional public forum, the designated public speech on government - owned property, the Supreme Court has identified t hree “In evaluating government regulations concerning private individuals’

that vanity registration plates are government property. without deciding, that the speech at iss ue in this case is private speech and omitted). Here, because neither party has argued otherwise, we will assume, and controls.” Perry v. McDonald, 280 F.3d 1 p. 5 59, 166 (2d Cir. 2001) (quotation the government n eed not permit all forms of speech on property that it owns v. Martinez, 829 F. Supp. 2d p. 4 47, 54 (N.D.N.Y. 2011). “It is well established that regulation of private, not government, speech.” Children First Foundation, Inc. The First Amendment’s “Free Speech C lause restricts government 5

distinguish the two doctrines when measuring a statute against the 890, 897 (D. Conn. 1978). “As a result, some courts have made no attempt to interpretation or facial invalidation.” United States v. Lambert, 446 F. Supp. similar conduct, and the same remedies are available, i.e., a narrowing sanctions to protected activity and deterrence of others from engaging in together.”). “The same evils are addressed, i.e., application of the statute’s overbreadt h in statutes, although raising separate problems, often arise Milwaukee, 292 N.W.2d 807, 813 (Wis. 1980) (“The problems of vagueness and and Courts frequently blend them together.”); State v. Princess Cinema of at 330 (“The doctrines of substantial overbreadth and vagueness often overlap, logically related and similar doctrines.”); Act Now to Stop War, 90 p. 5 5 F. Supp. 2d 358 n.8 (1983) (“[W] e have traditionally viewed vagueness and overbreadth as 425 F.3d 820, 827 (10th Cir. 2005); see also Kolender v. Lawson, 461 U.S. 352, same relief, namely invalidation of the offending regulation.” Jordan v. P ugh, First Amendment context are alternative and often overlapping grounds for the “Although not identical, vagueness and overbreadth challenges in the

and brackets omitted). area so closely touching our most precious freedoms.” Id. at 330 (qu otation expression, and therefore precision of regulation must be the touchstone in an “Courts are suspicious of broad prophylactic rules in the area of free to Stop War v. District of Columbia, 90 p. 5 5 F. Supp. 2d 317, 3 29 (D.D.C. 2012). overbroad and vague laws that may have a chilling effect on speech.” Act Now “In the First Amendment context, courts are especially concerned about

merits of the petitioner’s arguments. sufficiently briefed the se issue s for our review. We, therefore, turn to the unconstitutionally vague and unconstitutionally overbroad, and has t he petitioner separately challenges the restriction at issue as both that the vagu eness issue should be deemed waived. We disagree. In his brief, has not adequately briefed the vagueness issue. The DMV therefore concludes concepts of vagueness and overbreadth” and that, in any event, the petitioner T he DMV argues preliminarily that the petitioner “improperly merges the

which the DMV disagrees.’” speech” and “is implemented by [the] DMV to mean ‘ any point of view with C p. 5 514.61(c)(3)] casts too wide a net, and encroaches on the realm of protected maintains that “‘ [t]he offensive to good taste ’ standard. . . promulgated by [Saf facially invalid because it is unconstitutionally vague and o verbroad. He The petitioner argues that the restriction at issue in Saf - C 514.61 (c) (3) is

B. Facial Challenge

vanity plates, is to aid in vehicle identification”). plate regime, in part, because “stated policy in issuing li cense plates, including p. 6 6

“Uncertain meanings inevitably lead citizens to steer far wider of the unlawful exercise of those freedoms.” Id. at 109 (quotation s and brackets omitted). sensitive areas of basic First Amendment freedoms, it operates to inhibit the Grayned, 408 U.S. at 108. In particular, “where a vague statute a buts upon be prevented, laws must provide explicit standards for those who apply them.” Supreme Court has stated, “if arbitrary and discriminatory enforcement is to enforcement officers.” Act Now to Stop War, 905 F. Supp. 2d at 330. As the Thus, the vagueness doctrine serves to “[rein] in the discretion of

Transit, 1 p. 6 63 F.3d 341, 359 (6th Cir. 1998). the basis of impermissible factors.” United Food v. Southwest Ohio Reg ional the enactment invites abuse by enabling the official to admini ster the policy on guiding the discretion of the public official vested with the authority to enforce Rockford, 408 U.S. 1 04, 108 - 09 (1972). “The absence of clear standards dangers of arbitrary and discrimina tory application.” Grayned v. City of and juries for resolution on an ad hoc and subjective basis, with the attendant vague law impermissibly delegates basic policy matters to policeme n, judges, authorize s or even encourage s arbitrary and discriminatory enforcement). “A reasonable opportunity to understand what conduct it prohibits; or (2) it inde pendent reasons: (1) it fails to provide people of ordinary intelligence a (2006) (explaining that vagueness may invalidate a statute for either of two Lambert, 446 F. Supp. at 897; see also State v. MacElman, 154 N.H. 304, 307 wrongdoer and prevention of arbitrary or discriminatory enforcement.” the statutory language is unclear, and is concerned with notice to the potential The vagueness doctrine, “originall y a due process doctrine, applies when

(Quotation omitted.) We agree. “authorizes or even encourages arbitrary and discriminatory enforcement.” unconstitutionally vague because it is “so loosely constrained” that it The petitioner argues that the restriction in Saf - C 514. p. 6 61(c)(3) is

face. this in mind, we address whether Saf - C 514. p. 6 61 (c)(3) is unconstitutional on its unclear in its scope that officials enforce it in an overbroad manner.”). With (“Overbreadth and vagueness may overlap when the challenged statute is so unconstitutionally vague in its overly broad scope.”); Jordan, 425 F.3d at 828 U.S. 536, 551 (1965) (“Th e statute at issue in this case. . . is that is constitutionally protected.” (citations omi tted)); Cox v. Louisiana, 3 p. 7 79 the ordinance sweeps too broadly, penalizing a substantial amount of speech that d elegates overly broad discretion to the decisionmaker, and in cases where creates an impermissible ri sk of suppression of id eas, such as an ordinance an ordinance under the overbreadth doctrine in cases where every application Nationalist Movement, 505 U.S. 123, 129 - 30 (1992) (“[A] party [may] challenge requirements of the First Amendment.” Id.; see, e.g., Forsyth County v. 7

wholly commendable: VIRTUOUS, PURE” and “conform ing to some abstract is defined as “conforming to a certain ideal or standard of morality or virtue: International Dictionary 1566 (unabridged ed. 2002). As pertinent here, “g ood” resentment: giving offense: INSULTING, AFFRONTING.” Webster’s Third New The word “o ffensive” means, in relevant part, “causing displeasure or

meanings to words used.”). language used, and, where possible, we ascribe the plain and ordinary construing statutes and a dministrative regulations, we first examine the Timber Co. v. N.H. Dep’t of Revenue Admin., 162 N.H. 98, 101 (2011) (“When ordinary meaning of the words used. N.H. Residents Ltd. Partners of Lyme discern the meaning of “offensive to good taste,” we will look to the plain and that the legislature did not enact superfluous or redundant words.”). T o cons truing a statute, we must give effect to all words in a statute and presume Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525 - 26 (2002) (“When interpretation.” N.H. Admin. Rules, Sa f - C 514.61(c) (2); c f. Winnacunnet Coop. regulation prohibits vanity registration plates that are “capable of an obscene to prohibit obscene ma t erial, we note that a separate provision in the defined in the regulation. Fur ther, to the extent the phrase could be construed Admin. R ules, Saf - C 514.61(c)(3). The phrase “offensive to good taste” is not plates that “a reasonable person would find offensive to good taste.” N. H. omitted)). T he challenged portion of the regulation prohibits vanity registration statutory interpretation case is the language of the statute.” (quotation Town of Nottingham, 153 N.H. 539, 546 (2006) (“The starting point in any regulation. See Act Now to Stop War, 905 F. Supp. 2d at 34 p. 7 7; cf. Appeal of 514.61(c)(3) is unconstitutionally vague, we begin with the langua ge of the When considering whether the challenged restriction in Saf - C

laws.” Id. principle applies with as much force to civil statutes as it does to criminal impermissible risk of suppression of ideas.” Id. (quotation omitted). “[T]his “Without such standards, every application of the regulation creates an standards on which to base his or her decisions.” Lewis, 253 F.3d at 1080. the official charged with granting the permission must be provided specific 514.61(c)(3), “requires that a speaker receive permission to engage in speech, Now to Stop War, 905 F. Supp. 2d at 351. Thus, when a regulation, like Saf - C at stake, “[c]ourts ap ply the vagueness doctrine with special exactitude.” Act Grayned, 408 U.S. at 110. Nonetheless, when First Amendment interests are use of words, we can never expect mathematical certainty from our language.” Williams, 553 U.S. 285, 304 (2008) (quotation omitted). “Condemned to the required even of regulations that restrict expressive activity.” United Stat es v. We recognize that “p erfect clarity and precise guidance have never been

(quotation and ellipsis omitted). zone tha n if the boundaries of the forbidden areas were clearly marked.” Id. p. 8 8

petitioner’s request because several DMV employees believed the te xt to be the p hrase “offensive to good taste,” we disagree. The DMV initially denied the petitioner’s requested vanity registration plate in this case aids in interpreting To the extent the DMV argues that its reasoning for denying the

officials’ subjectiv e idea of what is “good taste.” power to deny a proposed vanity registration plate because it offends particular not sus ceptible of objective definition, the restriction grants DMV officials the through time.” Id. at 1574. Because the “offensive to good taste” standard is ‘good taste’ on any given day, the content of that meaning does not rigidly abide teaches anything, it teaches us that whatever may be the accepted meaning of ideological ferment of the last four decades of the American social e xperience uncertain and did not pass constitutional muster). “If the intellectual and high school yearbook “on the basis of a standard of ‘poor taste’” was vague and 1560, 1572, 1574 (D. Me. 19 p. 8 84) (concluding tha t prohibition of quotation in bad ‘taste.’” Stanton by Stanton v. Brunswick School Dep t., 577 F. Supp. predictions or assessments of what a discrete popul ace will think about good or ago, “[f]ree public expression cannot be burdened with governmental the United States District Court for the District of Maine stated t hirty years taste” may not be offensive to the good taste of ano ther reasonable person. As omitted)). I ndeed, s peech that one reasonable person finds “offensive to good that annoys some people does not annoy others” (quotation and ellipsis annoying to persons passing by” unconstitutionally vague because “[c]onduct assemble on any of the sidewalks and there conduct themselves in a manner (finding ordinance that made it a criminal offense for “thr ee or more p ersons to Supp. 2d at 348; cf. Coates v. City of Cincinnati, 40 2 U.S. 611, 611, 614 (1971) people frequently come to different conclusions.” Act Now to Stop War, 905 F. determining which vanity registration plat es shall be authorized. “Reasonable However, this modifier fails to provide sufficient guidance to DMV officials in the “reasonable person” standard. See N.H. Admin. Rules, Sa f - C 514.61(c)(3). We acknowledge th at the phrase “offensive to good taste” is modified by

to good taste.” the arbitrariness of determining whether a vanity registration plate is “offensive of morality or virtue of individual preference.” This reading alone demonstrates that no vanity registration plates are allowed that are “insulting to the standard phrase “offensive to good taste.” For example, one such interpretation could be together, these definitions lead to various potential interpretations of the preference: LIKING, RELISH, FONDN ESS, INCLINATION.” Id. at 2343. Taken universe.” Id. Finally, “taste” is defined, in relevant part, as “individual ethical consciousness or is conceived as fitting in the moral order of the otherwise beneficial” and “something that satisfies or commends itself to the possesses desirable qualities, promotes success, welfare, or happiness, or is DESIRABLE, WISE.” Id. at p. 9 97 p. 8 8. “[G]ood” is also defined as “something that standard or ideal (as of prudent conduct or proper condition): RIGHT, 9

DALIANIS, C.J.