American Civil Liberties Union v. Conti

835 F. Supp. 2d 51, 2011 WL 6130768, 2011 U.S. Dist. LEXIS 141146
CourtDistrict Court, E.D. North Carolina
DecidedDecember 8, 2011
DocketNo. 5:11-CV-470-F
StatusPublished
Cited by5 cases

This text of 835 F. Supp. 2d 51 (American Civil Liberties Union v. Conti) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Civil Liberties Union v. Conti, 835 F. Supp. 2d 51, 2011 WL 6130768, 2011 U.S. Dist. LEXIS 141146 (E.D.N.C. 2011).

Opinion

ORDER

JAMES C. FOX, Senior District Judge.

This matter came before the undersigned for a hearing on the Motion for Preliminary Injunction [DE-8] filed by Plaintiffs American Civil Liberties Union [54]*54of North Carolina (“the ACLU-NC”), Dean Debnam, Christopher Heaney, Susan Holliday, CNM, MSN and Maria Magher (collectively, “Plaintiffs”). In the motion, Plaintiffs seek a preliminary injunction prohibiting Defendants from implementing, enforcing, or otherwise carrying out the program of administration for the issuance of “Choose Life” license plates, as provided for in Session Law 2011-392. At the hearing, Plaintiffs were represented by Katherine Lewis Parker. Defendants Eugene A. Conti and Michael Robertson, sued in their official capacities as Secretary of the North Carolina Department of Transportation and Commissioner of the North Carolina Division of Motor Vehicles, respectively, (collectively, “the State” or “Defendants”) were represented by Special Deputy Attorney General Neil Dalton.1 The hearing concluded with the undersigned allowing Plaintiffs’ Motion for Preliminary Injunction. This order memorializes and clarifies the ruling.

I. FACTUAL BACKGROUND

On June 18, 2011, the North Carolina General Assembly passed House Bill 289, entitled “AN ACT TO AUTHORIZE THE DIVISION OF MOTOR VEHICLES TO ISSUE VARIOUS SPECIAL REGISTRATION PLATES” (hereinafter, “the Act”). Governor Beverly Perdue signed the bill into law on June 30, 2011. See N.C. Sess. Law 2011-392. The Act authorizes many new specialty license plates, including a plate bearing the message “Choose Life.” See N.C. Sess. Law 2011-392 § l(bl)(39). The Act brings the total of specialty license plates authorized by the North Carolina legislature to well over 100. N.C. Sess. Law 2011-392 § (b)(Z); N.C. Gen.Stat. § 20-79.4(b).2

Unlike many other States, North Carolina does not have a general statutory or administrative mechanism through which organizations or individuals can propose or obtain specialty plates.3 Rather, the only specialty plates available are those specifically authorized by the North Carolina General Assembly. See N.C. Gen.Stat. § 20-79 et seq.

The “Choose Life” license plate at issue in this suit would cost $25.00 annually in addition to the regular yearly registration [55]*55fees. See N.C. Sess. Law 2011-392 § 4(a). From this price, $15.00 of every plate sold would go to the Carolina Pregnancy Care Fellowship, a private organization which funds and supports crisis pregnancy centers in North Carolina. N.C. Sess. Law 2011-392 §§ 5, 7(b84). The funds to be collected from the “Choose Life” plate are expressly prohibited from “be[ing] distributed to any agency, organization, business, or other entity that provides, promotes, counsels, or refers to abortion.” N.C. Sess. Law 2011-392 § 7(b84).

Under the provisions of the Act, if the Division of Motor Vehicles has received 300 applications for plates bearing the “Choose Life” message, it may develop the plate. N.C. Sess. Law 2011-392 § 7(b84). Plaintiffs allege that in practice, the applications are received through the Carolina Pregnancy Care Fellowship, the sole recipient of a portion of the funds from the sale of the “Choose Life” plate. Verified Compl. [DE-1] ¶ 25. Plaintiffs allege, upon information and belief, that the Carolina Pregnancy Care Fellowship has received or will soon receive the requisite 300 applications. Id. ¶ 26. Once the Division of Motor Vehicles issues the “Choose Life” plate, it would be available to any interested vehicle owner in the State of North Carolina.

During the 2011 Legislative Session, various legislators proposed amendments to House Bill 289 to include another specialty plate stating: “Respect Choice” or “Trust Women. Respect Choice.” Verified Compl. ¶¶ 28-31. In all, legislators made six attempts to amend the Act, accompanied by rancorous debate. Verified Compl. ¶ 32; Ex. C (recordings of various committee meetings wherein House Bill 289 and the amendments were discussed). All six of those attempts were rejected by the General Assembly.

Plaintiffs thereafter initiated this action by filing a Verified Complaint, Motion for Temporary Restraining Order, and Motion for Preliminary Injunction. The Individual Plaintiffs are registered automobile owners in the State of North Carolina who desire to purchase a license plate bearing a message expressing support for a woman’s right to reproductive choice, such as “Respect Choice” or “Trust Women. Respect Choice.” Verified Compl. ¶¶ 9-12. The ACLU-NC is a non-profit membership organization with the mission of defending individual freedoms embodied in the United States and North Carolina Constitutions. Verified Compl. ¶ 8. The Plaintiffs contend that by authorizing the “Choose Life” plate while rejecting a pro-choice license plate, the State has opened a state-created forum for private speech to one viewpoint alone in the public debate over abortion, in violation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution. Verified Compl. ¶ 3.

II. STANDARD OF REVIEW

A preliminary injunction is an extraordinary interlocutory remedy, the purpose of which is to protect the status quo and prevent irreparable harm during the pendency of a lawsuit. In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-25 (4th Cir.2003). A court, in its discretion, may issue a preliminary injunction only if the moving party clearly establishes the following factors: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); West Virginia Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009).

[56]*56III. ANALYSIS

Plaintiffs contend that a preliminary injunction must issue because the State, by authorizing the “Choose Life” plate while rejecting a pro-choice license plate, has engaged in impermissible viewpoint discrimination in violation of the First and Fourteenth Amendments, and this discrimination will result in irreparable harm. The State, however, argues that Plaintiffs cannot show a likelihood of success on the merits, and the motion for preliminary injunction should be denied. For the reasons stated below, the court finds that Plaintiffs have carried their burden in showing that the preliminary injunction should issue.

A. Plaintiffs have shown a likelihood of success on the merits

The parties agree that the dis-positive issue4 in determining whether Plaintiffs have shown a likelihood of success on the merits is whether the “Choose Life” license plate constitutes government speech. Government speech is not subject to scrutiny under the Free Speech Clause of the First Amendment. Pleasant Grove City, Utah v. Summum,

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Bluebook (online)
835 F. Supp. 2d 51, 2011 WL 6130768, 2011 U.S. Dist. LEXIS 141146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-civil-liberties-union-v-conti-nced-2011.