www.kisslinglaw.com
Nice article on the issue of the Confederate License Plate in NC. Thank you to Shea Denning.
Following the shooting deaths of nine black worshippers in June at a
historically significant Charleston church and South Carolina’s
subsequent removal of the Confederate flag from the grounds of the State
House, some have called upon North Carolina officials to stop issuing
specialty license plates featuring the Confederate flag. N.C. Governor
Pat McCrory
has said that the General Assembly must pass legislation to halt issuance of the plates. One veteran legislator was quoted in
this News and Observer story
as saying that he never would have voted to authorize such a special
plate and never recalls seeing such legislation. A spokesperson for
another legislator was quoted as saying that the Governor was empowered
to end issuance of the plates. Who’s right?
As it turns out, the answer is not obvious.
Where’s the statute? There’s a reason legislators
might not remember authorizing license plates featuring the Confederate
flag. They never specifically did so. Indeed,
G.S. 20-79.4(b) lists 250 types of special registration plates that DMV “shall issue.” None of these plates feature the Confederate flag.
So why were Confederate flag plates ever issued? The
General Assembly authorized issuance of license plates identifying
civic clubs and displaying the emblem of the identified club in a
provision currently codified as G.S. 20-79.4(b)(42). That statutory
subdivision specifies that license plates are “[i]ssuable to a member of
a nationally recognized civic organization whose member clubs in the
State are exempt from State corporate income tax.” It lists, as examples
of these types of clubs, Jaycees, Kiwanis, Optimist, Rotary, Ruritan,
and Shrine. The statute requires the plate to “bear a word or phrase
identifying the civic club and the emblem of the civic club,” and
provides that DMV may not issue a civic club plate unless it receives at
least 300 applications for that plate.
After receiving tax-exempt status from the North Carolina Department
of Revenue, the North Carolina chapter of the Sons of Confederate
Veterans (SCV) applied to DMV for issuance of a license plate bearing
its emblem: the Confederate flag. DMV refused to issue the plates.
SCV sued in superior court and won. The trial court ordered DMV to
issue SCV registration plates once it received the requisite 300
applications. DMV appealed, and a majority of the court of appeals
affirmed in
North Carolina Division of Sons of Confederate Veterans v. Faulkner,
131 N.C. App. 775 (1998). The appellate court determined that SCV was
of a similar character as the qualifying civic clubs listed in the
“civic club” subdivision of G.S. 20-79.4(b) and thus was a “nationally
recognized civic organization” within the meaning of that statute. Thus,
the court determined that SCV qualified for special registration
plates. The court noted that “[w]hether the display of the confederate
flag on state-issued license plates represents sound public policy is
not an issue presented to the Court in this case. That is an issue for
our General Assembly.”
Significantly, however, the court did not rule in favor of SCV on
constitutional grounds. While it noted that “allowing some organizations
which fall within section [G.S. 20-79.4(b)(42)’s] criteria to obtain
personalized plates while disallowing others equally within the criteria
could implicate the First Amendment’s restriction against content-based
restraints on free speech,” the court avoided the need for
constitutional analysis when it determined that the statute required
issuance of the plates.
Judge (and subsequent Justice) Timmons-Goodson dissented on the basis
that SCV did not satisfy the statutory definition of civic club. DMV
evidently declined to exercise its right to appeal the divided decision
to the state supreme court.
What happened next? DMV followed the court’s directive. The News and Observer
reports that more than 2,000 such plates have been issued.
Wasn’t there just a U.S. Supreme Court case involving this very issue? Yes.
The United States Supreme Court held last month in a 5-4 decision that
the First Amendment did not require the State of Texas to issue license
plates featuring the Sons of Confederate Veterans emblem.
Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239 (2015). The high court determined that specialized
license plates were a form of public speech by the State government
rather than private speech by the organizations whose logos were
featured on license plates. Thus, the majority concluded that Texas
could “choose how to present itself and its constituency.”
Had the North Carolina court of appeals based its decision that DMV
was required to issue SCV license plates on a determination that to do
otherwise would constitute viewpoint discrimination in violation of the
First Amendment, the United States Supreme Court’s determination in
Sons of Confederate Veterans
would overrule that determination. But the North Carolina Court of
Appeals did not rest its holding on that ground. Instead, as noted
above, it determined that the statutory provision directing DMV to issue
special license plates for civic clubs that met the statutory
definition required issuance of the Confederate flag plates.
So who is right? If G.S. 20-79.4(b)(42) afforded
DMV discretion in determining which civic organizations were entitled to
special plates, there would be no question that the governor could
direct DMV, an agency under his control, to stop issuing Confederate
flag plates. But the court of appeals in
Sons of Confederate Veterans did
not construe G.S. 20-79.4(b) as allowing DMV to select which civic
groups were eligible for special plates. That’s presumably why the
Governor has concluded that he cannot tell DMV to stop issuing the
plates unless the General Assembly amends the statute.
On the other hand, considering the history behind the issuance of
these plates, it isn’t hard to understand why some legislators
disagree.The legislature never approved the confederate plates, DMV
issued them only after the state court of appeals said it had to, and
the U.S. Supreme Court just held, in a similar case, that Texas was not
required to issue Confederate flag plates. Taking a broad view of the
matter and discounting the specific reasoning of the state court
opinion, one might conclude that the Governor could act on his own to
stop DMV from handing out Confederate plates.
