8th Circuit: Mo. must issue ‘Choose Life’ car tags

Friday, March 27, 2009

KANSAS CITY, Mo. — A federal appeals court yesterday upheld a lower court's ruling that required Missouri officials to issue license plates that read “Choose Life.”

A unanimous three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis agreed with a federal judge who ruled last year that the state's process for approving or disallowing specialty license plates was unconstitutional.

Missouri officials began issuing the plates last month and about 170 are on the roads now, said Department of Revenue spokesman Ted Farnen.

The Alliance Defense Fund sued in June 2006 on behalf of Choose Life of Missouri and the group's president. The suit alleged lawmakers violated free-speech, due-process and equal-protection rights by rejecting Choose Life's application for the specialty plate, while approving other proposals.

The lawsuit named as defendants then-Department of Revenue Director Trish Vincent and the 14 members of a joint House and Senate Transportation Committee, which rejected the application after two members who support abortion rights objected without giving a reason.

For a new specialty plate to be approved, no committee members can oppose it. A formal objection from two senators or five House members before a vote also kills it.

The lawsuit claimed the process was unfair because there was no objective or written criteria for the committee to decide whether to approve a plate design.

U.S. District Judge Scott Wright agreed, ruling in January 2008 that the Choose Life plates had to be issued and finding that the state law governing specialty plates was “unconstitutionally vague and overbroad.”

During arguments before the 8th Circuit last October, Missouri's attorneys argued that messages on state-issued license plates constitute government speech and can be restricted.

But the 8th Circuit, referring to legal decisions governing Choose Life plates in South Carolina, Tennessee, Arizona and Illinois, said the plates were private speech.

“Because the 'Choose Life' plate is different from the standard Missouri license plate, a reasonable observer would understand that the vehicle owner took the initiative to purchase the specialty plate and is voluntarily communicating his or her own message, not the message of the state,” the three-judge panel wrote in Roach v. Davis.

The court said that without any objective criteria for approving plate designs, the state law gives the joint committee members “unbridled discretion to determine who may speak based on the viewpoint of the speaker … and is therefore unconstitutional.”

Joel Oster, an attorney with the Alliance Defense Fund, a conservative Christian legal organization, said group was pleased with the decision.

“The court recognized that the license plate constituted private speech and that the pro-life message can't be censored just because a couple of pro-choice senators disagree with that message,” Oster said.

Robert Kenney, chief of staff for Missouri Attorney General Chris Koster, said yesterday that officials were deciding what, if any, steps to take next.

Farnen said a decision hadn't been made yet on how to proceed with the case.

In light of the “Choose Life” lawsuit, state lawmakers have considered changing how the state approves specialty plates.

A measure that has been approved by the Senate and is currently before the House would return power of approving specialty plates to the full Legislature, which had that authority until 2004.

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