N.H. Supreme Court free speech case amicus announcement

[smiley]

The N.H. Supreme Court is soliciting briefs amicae for a free speech appeal of mine they're currently hearing.  I thought some people here might be interested in the case.  It could be a relatively low-cost/low-risk opportunity for anyone thinking about doing some legal activism.  Here's the court's announcement (further information follows):

THE SUPREME COURT IS SOLICITING AMICUS BRIEFS OR MEMORANDA IN THE FOLLOWING MATTER PENDING BEFORE THE COURT:

Case No. 2012-0624, David Montenegro v. New Hampshire Division of Motor Vehicles

The petitioner in this case applied for a vanity license plate from the New Hampshire Division of Motor Vehicles (DMV) that would have read, "COPSLIE."  The DMV denied the request pursuant to a regulation prohibiting any vanity license plate that "a reasonable person would find offensive to good taste," reasoning that the request advanced an "accusation of moral turpitude."  Instead, the DMV issued the petitioner plates bearing his alternative choice of "GR8GOVT." The trial court upheld the DMV's action over the petitioner's challenge to the "offensive to good taste" standard as unconstitutionally vague and overbroad, and argument that the DMV's decision constituted unconstitutional viewpoint discrimination.

The court is soliciting amicus briefs or memoranda from interested persons on the following issue: In denying the petitioner's requested vanity license plate on the basis that a reasonable person would find it offensive to good taste, did the DMV violate his rights under Part I, Article 22 of the New Hampshire Constitution or the First Amendment to the United States Constitution?

A copy of the trial court's order is being posted with this announcement.  Amicus submissions are due on or before June 24, 2013. Persons filing amicus briefs are expected to comply with the requirements of Rules 16 and 17 of the Rules of the Supreme Court of New Hampshire. To assist the court, amicus briefs should focus on the ramifications of a decision and not solely on the interests of the parties filing such briefs.

Interested persons shall file an original and ten copies of their briefs or memoranda in the Office of the Clerk, New Hampshire Supreme Court, One Charles Doe Drive, Concord, New Hampshire 03301. The court will provide a copy of any amicus brief or memorandum to each of the parties.

Here's a link to the announcement on the NHSC Web site: http://www.courts.state.nh.us/supreme/amicus/2012-0624.pdf

Here's a link to the trial court's order: http://www.courts.state.nh.us/supreme/amicus/2012-0624-order.pdf

(For the benefit of those who aren't attorneys, N.H. Supreme Court Rule 16 can be found here: http://www.courts.state.nh.us/rules/scr/scr-16.htm. Rule 17 can be found here: http://www.courts.state.nh.us/rules/scr/scr-17.htm. All the rest of the N.H. Supreme Court's rules can be found here: http://www.courts.state.nh.us/rules/scr/index.htm.)

For further background information, PDF copies of briefs filed in the trial court, briefs filed with the supreme court, the joint stipulations of fact, the trial court's order, etc. can be found here: http://yourfreedomisfake.com/link/COPSLIE/

Feel free to distribute/repost this invitation elsewhere... CC-SA.

[Tom Sawyer]

COPSLIE

[John]

i shared this thread to facebug

[Dave Ridley]

Good to see you back on the radar Smiley and thanks to all who are responding to his concerns....

[WithoutAPaddle]

Does anyone remember NH license plate "IH8DCY"?.  Did I get the letters right?  I think it was attorney Paula Werme who had those plates removed from her car by the State Police.

Is she sitill around?  Her web page,  http://nhdcyf.info/ has not been updated since 2008.

[WithoutAPaddle]

Found it:

http://wermenh.com/h8dcyf/gagged.html

NH Vanity Plate GAGGED

2000 Nov 30
A week or so ago the DMV sent me a pair of ordinary number plates. I guess they expect me to put them on the van, but they're so boring I don't. Instead, I go to the town hall to try to snare IH8DCYF. However,the clerk says that the computers haven't caught onto the seven character vanity plates yet and she'd have to call Concord and deal with a human. I figure that would be a waste of time, so I fall back on Plan B and ask for GAGGED. That's available, so I walk out with a temporary paper plate officially gagged. This is okay, as the back of the van has enough signs to leave no doubt as to the details.

The metal plates arrived yesterday! Clearly it would be disingenuous for my plate to sport the state motto "Live Free or Die", so I'll just cut and fold over the "Live Free" part of that. As for the Old Man's profile, he needs a padlock over his mouth. The Wooley v. Maynard decision should extend to that without difficulty. Time to declare victory. The campaign is not over, we have a couple projects left....

--------------------------------------------------------------------------------

The complaints about H8DCYF are becoming significant elsewhere, so I went the the DMV on Jan 2 to find Virginia Beecher. However, she was out, but I was asked to fill out a form asking for the information I sought. The form was wholly inappropriate, but I figured they might find it harder to ignore a requested form rather than a letter out of the blue. I waited as long as I could, but Ms. Beecher never showed up. However, she sent the following letter the next day.

State of New Hampshire
Department of Safety
James H. Hayes Bldg. 10 Hazen Dr.
Concord, N.H. 03305
January 3, 2001

Ms. Paula Werme
Attorney at Law
83 North Main Street
Boscawen, NH 03303

Dear Attorney Werme:

Please be advised that the Division of Motor Vehicle's [sic] is returning the Release of Motor Vehicles Records form (DSMV 505) filled out by you on January 2, 2001, for the following resaon: The request, "I want to see my entire file on H8DCYF," seeks access to a record or records that do not exist. Motor vehicle records kept by the department include "all applications, reports required by law, registrations, histories, certificates, and licenses issued or revoked by the department and the information, including personal information, contained in them." See NH RSA 260:14, I(a). If your request, however, is for your motor vehicle history, such a request under RSA 260:14 is for your driver record. A request for a driver record, however, was not made in this case. Moreover, you have asked to meet with the Commissioner of Safety regarding an alleged "violation of RSA 260:14, VIII." I assume you were referring to RSA 260:14, VII, shich provides that an individual shall have access to motor vehicle records relating to such person upon proof of identity. Again, such a request would refer to motor vehicle records as described above, and you would have to make a specific request under section III of the DSMV 505.

Please also accept this letter as a reaponse to your request for public records under RSA 91-A. Your request for "a listing of all NH license plates with 'H8' any where in the configuration" is more properly a request made under the driver privacy law, RSA 260:14, since this request is for motor vehicle records. Pursuant to NH RSA 260:14, II(a), the legislature has determined that motor vehicle records are not public records under the right-to-know law, Thus, your request must comply with the terms of RSA 260:14, and the rules contained in Saf-C Chapter 5600. Because it does not, the request can not be met.

[The privacy issue arose after the Union Leader printed the names of the holders of numbered license plates 1 to 9999. Not only are NH drivers fond of vanity plates, but we also hold low numbered plates special for their prestige and purported ability to ward off speeding tickets. However, the holders appear to want anonymity too! A more serious issue was that stalkers were using using these records to get the names and addresses of the drivers they wanted to pursue. In my case, I don't care about names, I just want to know what H8 plates are out there so people can be offended by them.]

In the past, you have asked for information concerning complaints made to this agency by private citizens concerning your registration listing at the time. You did not reference this request as being one for public records under RSA 91-A, Nevertheless, I will assume that the request was for such public records kept by the department. One of the complainants did reduce comments to writing and, thus, such written correspondence has become a public record of the Department pursuant to RSA 91-A. A copy of this complaint can be obtained by contacting Evelyn Sargent at 271-2559, and after the submission of a fee of $1.00 pursuant to Saf-C 203:13. There is no cost for the inspection of the public record.

[This is a little curious as it means that the DMV accepts verbal requests to the DMV to recall plates. So much for accountability.]

Sincerely,
Virginia C. Beecher, Director
Division of motor Vehicles
NH Department of Safety

[WithoutAPaddle]

Stuff on the internet never goes away, but unfortunately, I don't have time to format it as thoroughly as I'd like.

Recalled and Stolen: NH Vanity Plate H8DCYF

We don't know what or who triggered the following letter, but we suspect another state agency cashed in a favor owed to them by the DMV. Apparently that other agency has a very thin skin.


State of New Hampshire
Department of Safety
Division of Motor Vehicles
November 16, 1999
Paula Werme
83 N Main Street
Boscawen NH 03303

Dear Registrant:

Please be advised that plate H8DCYF issued to you on a 1993 Ford VIN ************ is being recalled as it was given to you in error.

Please return initial paper plate H8DCYF along with this letter to the nearest Motor Vehicle [sic]. You may select another initial plate at no further cost or obtain regular passenger plates. If you select the regular passenger plates the $25.00 vanity fee will be refunded you you.

Should you have any further questions please call 271-****. Thank you for your prompt attention to this matter.

Sincerely,


Arthur S. Garlow
Assistant Director




--------------------------------------------------------------------------------

Of course, this was quite distressing, as both my car and I have become attached to H8DCYF, I won't give up the plate without a fight. The DMV is somewhat confused, as the temporary paper plate referred to above is long gone. The permanent plate has been on the vehicle since October 20th. I sent this reply via certified mail.

November 19, 1999


Arthur S. Garlow
Department of Safety
Division of Motor Vehicles
10 Hazen Drive
Concord, NH 03305


Re: NH Registration H8DCYF


Dear Mr. Garlow,

I am in receipt of your letter dated November 16, 1999. You indicate that my plate is being recalled as being issued to me in error. This is incorrect. I specifically requested this plate. I am a Libertarian civil rights lawyer, whose main area of practice is the defense of child abuse cases, and the plate perfectly expresses my sentiments toward the Division for Children, Youth, and Families, who violate my clients' rights on a daily basis.

Upon receipt of your letter, I immediately consulted my Lexis CD-rom, looking under the statute for "vanity plates" and found the following:


§ 261:89. Vanity Number Plates.
The director is hereby authorized to design and to issue, under such rules as he shall deem appropriate, vanity number plates to be used on motor vehicles in lieu of other number plates. Such number plates shall be of such design and shall bear such letters or letters and numbers as the director shall prescribe, but there shall be no duplication of identification. Such number plates or a changeable designation of the effective period thereof, as the director shall determine, shall be issued only upon application therefor and upon payment of a special fee of $25, said special fee to be in addition to the regular motor vehicle registration fee and any other number plate manufacturing fee otherwise required by law for the particular vehicle. All special fees collected under this section shall be paid to the state treasurer and distributed as provided by RSA 263:52.

History

Source. RSA 260:10-a. 1957, 8:1. 1970, 38:6. 1974, 45:2. 1981, 146:1. 1982, 42:154. 1983, 469:104, eff. July 1, 1983.

Annotations

Amendments--1983. Substituted "$25" for "$15" in the third sentence. --1982. Substituted "$15" for "$5" in the third sentence and rewrote the last sentence.

I was unable to find in the CD-Rom any "rules" as the director deems appropriate that apply to the selection of vanity plate numbers. I would certainly like to maintain a vanity plate that properly expresses my anti-DCYF sentiments, but of course, I understand the need to stay within the Department's rules. Please forward me a copy of those rules, so I may properly choose another appropriate plate without running afoul of them. I believe this needs to be done quickly, as it appears from the rules I was able to find, that any person requested to turn in a registration runs the risk of having his plates lifted by law enforcement officers pursuant to a pick-up order that may be issued by your department. Of course, that particular rule does not indicate whether or not your department may issue such an order in the event that a registration has not been suspended. I am unclear as to whether or not my registration has been suspended. Perhaps you could clarify that point for me, and if it has been suspended, kindly inform me of the reasons.

You need to know with respect to rules of the Director, that any government action or rule that restricts political speech must have a compelling reason, or it will be held to be unconstitutional. So, while speech that advocate violence may be upheld (the reason I rejected "AXDCYF" even though "ax" is commonly used in political speech as a term meaning "get rid of"), rules that completely suppress particular political viewpoints may not be enforced.

I hope we can clear up this little matter soon. Thank you for your anticipated prompt response.

Sincerely,
Paula J. Werme, Esq.



For non-NH readers, one well known legal precedent involving license plates reached the US Supreme Court. They concluded in Wooley v. Maynard that putting tape over the phrase "Live Free or Die" was Constitutionally protected Free Speech. It's amazing what some people will drag through the courts! The attorney for the state was one David Souter who is now a member of US the Supreme Court. It would be ironic if H8DCYF reaches them.


--------------------------------------------------------------------------------

Steve Varnum of the Concord Monitor tried to look into why and who initiated the recall, but DMV officials were out to lunch, err unavailable, yesterday.

Lawyer's vanity plate recalled
The Division of Motor Vehicles has recalled the vanity license plate of a local attorney who defends child abuse cases. ...

Werme said she was told the plates were considered offensive. ...

No one at the Division of Motor Vehicles was available to comment yesterday afternoon.



--------------------------------------------------------------------------------

I still haven't received a response to my certified letter. I get the feeling that the DMV thought the metal plate had not been issued and that they could simply catch it before it was sent. Once they realized I had the plate and wasn't letting go, I think they figured the best course was to ignore the problem and hope it goes away. However...

Alice Giordano of the Boston Globe decided to write a story for the Sunday Boston Globe of December 19th. She looked into other license plates that have been issued by New England states and found a WWW site of NH vanity plates. Her story was picked up by the Associated Press and carried in most of the major NH papers (and the Monday Boston Globe!)

The Globe doesn't keep their stories online for long, but some quotes follow.

N.H. 'hate plate' challenges license to free speech
The director of the Department of Motor Vehicles, Virginia Beecher, did not return numerous Globe phone calls to her office.

Vehicle registry lists from other New England states show that Werme's so-called "hate plate" is in company with a variety of other messages including IKILU, which belongs to a Warwick, R.I., woman and HATEM, displayed by a Massachusetts motorist.

There are also plates in New Hampshire that could easily outdo Werme's plate in offensiveness. Examples of vanity plates that have been allowed by the state include TNA4ME, S-O-B, +COKE+, and SPNKME.

Cathie Curtis, director of vehicle services at the Maine Department of Motor Vehicles, says she would have a problem with Werme's plate, though she couldn't say if it would be rejected. "Anything that starts with H8 or anything that starts creating the intent of hatred," said Curtis, "we would look very closely at it."



--------------------------------------------------------------------------------

On December 31th, I received the following from the DMV. It's essentially just a copy of the first, the key addition being the paragraph about requesting a hearing. So I FAXed it to Alice Giordano. :-)

December 29, 1999                         SECOND REQUEST
Paula Werme
83 N Main Street
Boscawen NH 03303
SECOND REQUEST 

Dear Registrant:

Please be advised that plate H8DCYF issued to you on a 1993 Ford VIN ************ is being recalled as it was given to you in error.

Please return initial plate H8DCYF along with this letter to the nearest Motor Vehicle [sic]. You may select another initial plate at no further cost or obtain regular passenger plates. If you select the regular passenger plates the $25.00 vanity fee will be refunded you you.

Should you want to request a hearing regarding this matter please call 271-xxxx.

If you have any further questions pelase call 271-****. Thank you for your prompt attention to this matter.

Sincerely,


Sherri L. Seabury
Counter Clerk III


cc: file/hearings



--------------------------------------------------------------------------------

I finally got around to answering Sherri Seabury. I wonder if she knew what she was getting into. I sent this reply via certified mail.

January 4, 2000

Sherri L. Seabury,
Counter Clerk, III
Department of Safety
Division of Motor Vehicles
10 Hazen Drive
Concord, NH 03301


Re: Ford VIN ************

Dear Ms. Seabury,

I was quite surprised to receive a second notice from you regarding my License plate being recalled. This letter is virtually a copy of the original letter I received from Arthur Garlow, the Assistant Director of Motor Vehicles, with the exception that it indicates that I can request a hearing on the matter. It appears that they are sending things DOWN the ladder instead of up as is usual in cases where the respondent isn't cooperating. Perhaps they are having a problem deciding what sort of action to take in the matter.

I responded to Mr. Garlow's letter with my own certified letter, and in it asked him for a copy of the rules regarding the selection of number plates. To date, I have not received those rules. Until I have been given some notice of what law or rule I have broken, I see no reason to schedule a hearing, because I don't know what the hearing would be about.

I am very sorry if my plate offends the commissioner, however, that in and of itself provides no legal basis for recalling my license plate. Please cite the basis for recalling my license plate, and I will be happy to then request a hearing on the matter. I thought perhaps you might enjoy reading about your role in this little saga on our web site: http://people.ne.mediaone.net/werme/h8dcyf.html.

Sincerely,
Paula J. Werme, Esq.

(more: http://wermenh.com/h8dcyf/h8dcyf.html )

[smiley]

The Concord Monitor just ran an article on this, "Dover man headed to Supreme Court over license plate message."

[Tom Sawyer]

Division employees were not amused by the request. They promptly denied the application, reasoning that the statement "cops lie" was, according to legal documents, "insulting."

Not "insulting", factual.

Seems like they have a problem with protected 1st Amendment speech.

[smiley]

In response to the recent flurry of interest in this case, I've posted a bunch of info about it, including a list of vanity plates permitted/denied by the NH DMV.  I've also posted a wiki version of the list, to which anyone may contribute, on Libertapedia.

As you can see, the DMV's decisions to allow or disallow vanity license plates are very often arbitrary and capricious. You'll probably be quite surprised by many of them, for example this obscene vanity plate seen in Dover.  (The image is hidden behind that link, so no one can accuse me of being obscene on the forum. )

[MaineShark]

In what way, precisely, is "BIGTDIS" obscene?  I don't see any obscenity, there.  Doubly so because that's a VW, and if the picture was of the back, it most likely has a "TDI" badge on it.  But, even so, I can't see how that would be obscene on any car.

[smiley]

In what way, precisely, is "BIGTDIS" obscene?  I don't see any obscenity, there.  Doubly so because that's a VW, and if the picture was of the back, it most likely has a "TDI" badge on it.  But, even so, I can't see how that would be obscene on any car.

I, myself, have a Ford.  It has two TIT (trailer-in-tow) hitches.  Do you think the DMV would issue me a vanity plate reading "BIGTITS"?

[MaineShark]

In what way, precisely, is "BIGTDIS" obscene?  I don't see any obscenity, there.  Doubly so because that's a VW, and if the picture was of the back, it most likely has a "TDI" badge on it.  But, even so, I can't see how that would be obscene on any car.

I, myself, have a Ford.  It has two TIT (trailer-in-tow) hitches.  Do you think the DMV would issue me a vanity plate reading "BIGTITS"?

That depends - is that a legitimate acronym from anywhere?  I've been driving and towing for many years, and I've never once heard that term.  There are bumper hitches, receiver hitches, fixed hitches, pintle hitches, gooseneck hitches, fifth wheel hitches, etc.  Never heard of a "trailer in tow" hitch.

"TDI" is precisely what it says right on the back of a VW diesel.

But I take it from your post that you imagine "TDIS" is somehow supposed to represent "TITS" - is that correct?  I'd say that's a pretty extreme stretch.  Until you posted, I couldn't figure out why you would think that was obscene.  Now that you've clarified what you thought, I still can't see how you got there from the text on the plate, which is pretty clear as to its meaning.  If it was "TIDS," you might have something, but even that would be a stretch.

[smiley]

But I take it from your post that you imagine "TDIS" is somehow supposed to represent "TITS" - is that correct?

No, no, no.  "BIGTDIS" means "big titties".  (There, you made me say it!) How can the DMV issue a license plate like "BIGTDIS" while refusing to issue "STUD"? "STUD" could also refer to a part of a tire, or to piece of lumber.

If you check, "TITTY" is not allowed, but "TITTIES" is listed as available.  "ANUS" is not, but "ANAL" is.  "FECAL" is unavailable, but "FECES" is.  "TESTES" is not allowed, but "TESTE" is available, as is "2TESTES".

"FBI", "CIA", and "GOVNER" are forbidden, while "DOJ", "FEMA", and "GOVRNOR" are listed as available.

Arbitrary and capricious.

[MaineShark]

But I take it from your post that you imagine "TDIS" is somehow supposed to represent "TITS" - is that correct?

No, no, no.  "BIGTDIS" means "big titties".  (There, you made me say it!)

Like I said, that seems like a stretch.  I would not make any such assumption, seeing that plate.

How can the DMV issue a license plate like "BIGTDIS" while refusing to issue "STUD"? "STUD" could also refer to a part of a tire, or to piece of lumber.

Just because something could, does not mean that's how it would be interpreted.

If you check, "TITTY" is not allowed, but "TITTIES" is listed as available.  "ANUS" is not, but "ANAL" is.  "FECAL" is unavailable, but "FECES" is.  "TESTES" is not allowed, but "TESTE" is available, as is "2TESTES".

"FBI", "CIA", and "GOVNER" are forbidden, while "DOJ", "FEMA", and "GOVRNOR" are listed as available.

"Check" in what way?  If you're referring to the online availability checker, that's just a convenience that they offer, which checks the plate against those already issued (so, its refusal may mean that the plate is already in service), and against a list of potentially-offensive plates that someone has invented.  That list may not catch everything which will be determined to be offensive, and you may be able to argue them into allowing a particular plate even though it's on the list.

Context is also part of it.  What's the purpose for which the plate is being used?  For example, in the corporation naming guidelines, they say that "grossly offensive, obscene" names will not be accepted.  But then go on to say:
"Names that may legitimately be understood to have a meaning that is not grossly offensive, despite contextual double entendre, are acceptable (e.g., Haulin' Ass for an animal transportation business or The Bitch Pound for a kennel business will be acceptable,; however The Filthy Bitch Pub for a bar would not be acceptable)."

The same sort of standard should be applied to plates.  While a given plate might be flagged in the online search as being potentially offensive, there is judgement allowed, so you could argue that "FECAL" should be allowed on your septic tank pumping truck (and it may not be allowed, precisely because it is already in use on someone's septic truck).

Arbitrary and capricious.

I don't disagree, but I think you need to use better examples.  "BIGTDIS" isn't going to help your case, and I'm hoping that you will actually do well with it, because their denial of your plate is obviously politically-motivated.  The online search won't help your case, either, precisely because it's not the last word.  It's a "convenience," and may allow things which someone didn't happen to think to add to the "not allowed" list, but which a human clerk will refuse to issue, and it may refuse things because someone assumed that was always offensive, and didn't happen to think of the context in which you intended to use it, which rendered it no longer "grossly offensive," and so a human clerk would allow that plate even though the online search refused.

You have a good case that they are engaging in infringement of your rights, without confusing the issue with claims that they will easily counter.