DICKSON, Justice.
In accord with a recent decision of the United States Supreme Court, we uphold the actions of the Indiana Bureau of Motor Vehicles in the processing of applications for personalized license plates.
This is a direct appeal from a trial court summary judgment declaring unconstitutional the statute that authorizes the Indiana Bureau of Motor Vehicles ("BMV") to refuse to issue personalized license plates ("PLPs"). The trial court found that the statute and its related policies were vague, overbroad, and lacking in content-neutrality, violating the First and Fourteenth Amendments to the United States Constitution. The trial court also held that the Bureau violates due process under the Fourteenth Amendment by providing insufficient reasons for a denial or revocation of a PLP. The BMV appeals, arguing that because personalized license plates are government speech, the statute and policies are constitutional. For the reasons expressed below, we agree and reverse the trial court's summary judgment for the plaintiffs on these issues and direct the trial court to enter summary judgment for the BMV on these claims.
Indiana allows a registered owner or lessee of certain types of vehicles, including passenger motor vehicles, to apply to the BMV for a PLP. Ind.Code § 9-18-15-1.
After receiving a PLP application, the BMV is permitted by statute to reject any PLP alphanumeric combination that "(1) carries a connotation offensive to good taste and decency; (2) would be misleading; or (3) the bureau otherwise considers improper for issuance." Ind.Code § 9-18-15-4(b). The BMV also created both an administrative rule and a policy guide for making rejection and revocation decisions. The administrative rule allowed the BMV to "revoke a previously issued PLP if the bureau: (1) receives a substantial number of complaints regarding the previously issued PLP; and (2) determines the previously issued PLP contains references or expressions that Indiana law prohibits." 140 IAC 2-5-4(a). The policy guide provided that a BMV License Plate/PLP Committee would review PLP applications and prescribed nine categories of reasons why PLP applications "may be prohibited." Appellant's App'x at 87. The Committee, however, had discretion to reject PLPs outside those categories and to accept PLPs within them. As the Committee made decisions, the BMV stored rejected applications-approximately 6,000 by 2013-on a list to compare with future applications. For each rejection, the BMV mailed the applicant a form letter indicating that their application was denied "based on the inappropriate content or invalid format." Id. at 14.
This Court has mandatory and exclusive jurisdiction over this appeal because the trial court declared a state statute unconstitutional. Ind. Appellate Rule 4(A)(1)(b). We review the trial court's grant of summary judgment and any questions of federal constitutional law de novo. Bleeke v. Lemmon, 6 N.E.3d 907, 917 (Ind. 2014); Choose Life Ill., Inc. v. White, 547 F.3d 853, 858 (7th Cir.2008). The material facts are undisputed.
The BMV argues on appeal that its PLP decision-making process is constitutional because "personalized plates are government speech, and even viewpoint discrimination is permissible." Appellant's Br. at 12. The BMV further contends that its "procedures for denying an application or revoking . . . plates satisfy procedural due process" because "[m]otorists have no protected interest in possessing a personalized plate that displays any particular message." Appellant's Br. at 15, 41. The BMV especially relies on the United States Supreme Court's recent decision in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015), arguing that under Walker's reasoning, personalized license plates must be government speech.
In Walker, the Supreme Court identified a three-factor standard for identifying government speech. 135 S.Ct. at 2247, 192 L.Ed.2d at 282-83. First, whether the government has historically used the medium to speak to the public; second, whether the message is closely identified in the public mind with the state; and third, the degree of control the state maintains over the messages conveyed. Id. Analyzing these factors together, we find that Indiana's PLPs are government speech.
License plates have long been used for government purposes. First and foremost, the alphanumeric combinations provide identifiers for public, law enforcement, and administrative purposes. Through these identifiers, the government enables the public to provide a unique identifier to others, differentiate between vehicles in a parking garage or lot, and identify their vehicles if they are borrowed or stolen. In addition to license plates providing unique identifiers, they "long have communicated messages from the States." Id. at 2248, 283. This is true of plates around the country and in Indiana. All fifty states have included graphics on their plates, including Pennsylvania's keystone in 1910, an Idaho potato in 1928, Florida grapefruits in 1935, a Georgia peach in 1940, a Colorado skier in 1958, and a Maine lobster in 1987. See generally James K. Fox, LICENSE PLATES OF THE UNITED STATES: A PICTORIAL HISTORY 1903-TO THE PRESENT (Interstate Directory Publ'g Co., Inc., 1994).
Like other states, Indiana has frequently communicated through its license plates. Indiana's slogans have included, among others, "DRIVE SAFELY" in 1956-1958, "LINCOLN'S YEAR" in 1959, "SAFETY PAYS" in 1960-1962, "150TH YEAR" in 1966, "WANDER" in 1985, "HOOSIER HOSPITALITY" in 1991, and currently "BICENENNIAL 1816-2016." Id. at 39, INDIANA ANTIQUE LICENSE PLATES 2000-PRESENT, http://www.in.gov/bmv/2834.htm. Indiana has used graphics as well, such as a minuteman in 1976, an Indy 500 car and checkered flag in 1979, and a sunset over a farm from 1993-1997. Fox, LICENSE PLATES OF THE UNITED STATES 39; INDIANA ANTIQUE LICENSE PLATES 1990-1999, http:// www.in.gov/bmv/2833.htm. Far more recently, Indiana began offering specialty
The plaintiffs argue that because PLP alphanumeric combinations are "individually-crafted" and "unique," Indiana's historic practice does not justify the conclusion that they are from the state. Appellee's Supp. Br. at 3. While the alphanumeric combinations on PLPs are individually chosen instead of created by the state, this difference is secondary and does not change the principal function of state-issued license plates as a mode of unique vehicle identification. And the historical context remains helpful to our analysis. Originally, Indiana license plates served only as a unique identifier. But over time, Indiana included first words, then graphics, then eventually specialty designs and personalized plates. This history shows that Indiana often communicates through its license plates and has expanded how it does so. Furthermore, the plaintiffs' distinguishing features are fully compatible with government speech. "The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message. . . ." Walker, 135 S.Ct. at 2251, 192 L.Ed.2d at 287. And, PLPs are no more unique than public park monuments, which "typically represent government speech." Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853, 863 (2009).
PLP alphanumeric combinations "are often closely identified in the public mind with the [State]." Walker, 135 S.Ct. at 2248, 192 L.Ed.2d at 284 (quoting Summum, 555 U.S. at 472, 129 S.Ct. at 1133, 172 L.Ed.2d at 864) (alteration in original). PLPs belong to the BMV and display "Indiana" prominently at the top of every plate, indicating that Indiana owns and issues them. See Ind.Code § 9-18-2-31. Indiana requires motor vehicle owners to display license plates and to obtain them from the BMV, the issuing state agency. Ind.Code §§ 9-18-2-8, -26, -30. Those who apply for an Indiana PLP discover that the BMV must approve every alphanumeric combination before it can be displayed. Ind.Code § 9-13-2-125. Also, PLPs "may not duplicate a regularly issued plate" and "[o]nly one (1) personalized plate . . . may be issued by the bureau with the same configuration of numbers and letters." Ind.Code § 9-18-15-2. Under these facts, Indiana "license plates are, essentially, government IDs"
Even vehicle owners requesting and displaying PLPs recognize the close association of the message with the state. In about two and a half years the BMV received
The plaintiffs argue that this second factor supports PLPs as government speech "only if it can be believed that a person who observes, for example, a personalized license plate of `BIGGSXY' or `FOXYLDY' or `BLKJEW'
Applying the third factor, Indiana "maintains direct control" over the alphanumeric combinations on its PLPs. Id. at 2249, 284. In fact, Indiana PLPs by definition must be approved by the BMV. Ind. Code § 9-13-2-125. The BMV may reject any PLP that "(1) carries a connotation offensive to good taste and decency; (2) would be misleading; or (3) the bureau otherwise considers improper for issuance." Ind.Code § 9-18-15-4(b) (emphasis added). The BMV not only holds broad authority in reviewing PLPs, but exercises it-rejecting thousands of combinations for reasons including "misleading," "poor taste," "profanity," and "violence." See Appellant's App'x at 124-49. Thus, the BMV "has effectively controlled the messages [conveyed] by exercising final approval authority over their selection." Walker, 135 S.Ct. at 2249, 192 L.Ed.2d at 285 (quoting Summum, 555 U.S. at 473, 129 S.Ct. at 1128, 172 L.Ed.2d at 858) (internal quotations omitted) (alteration in original).
The plaintiffs argue that the BMV "does not exert `effective control'" over PLPs, because, "aside from the statute challenged
The three Walker factors apply with equal or even greater force to Indiana PLPs as they do to Texas' specialty plates, demonstrating that Indiana's PLPs are government speech.
The plaintiffs argue that PLPs are "private speech in a forum provided by the State." Appellee's Supp. Br. at 4. While the three Walker factors alone demonstrate that PLPs are government speech, we follow Walker's example in addressing this argument even though it is not dispositive. As in Walker, "forum analysis is misplaced here," because Indiana's PLPs do not fit into any type of government forum for private speech. Walker, 135 S.Ct. at 2250, 192 L.Ed.2d at 286.
First, "PLPs are not a `traditional public forum,' such as a street or a park," which the government has long held in trust for public assembly, communication, and discussion. Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794, 804 (1983)). Traditional public forums do not extend beyond their historic confines, thus excluding PLPs from this status. Id. (quoting Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875, 887 (1998)).
Second, PLPs are not a "designated public forum" or a "limited public forum." Designated public forums exist "where government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose. . . ." Id. (quoting Summum, 555 U.S. at 469, 129 S.Ct. at 1132, 172 L.Ed.2d at 862) (internal quotation omitted). Limited public forums exist "where a government has reserv[ed a forum] for certain groups or for the discussion of certain topics." Id. (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 2516-17, 132 L.Ed.2d 700, 715 (1995)) (internal quotation omitted) (alteration in original). The government creates these forums "only by intentionally opening a nontraditional forum for public discourse." Id. (quoting Cornelius v. NAACP Legal Def and Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567, 580 (1985)) (internal quotation omitted). In order to
The BMV's policy and practice show that PLPs are not a public forum. Indiana license plates "have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State's name." Walker, 135 S.Ct. at 2251, 192 L.Ed.2d at 287. The BMV "exercises final authority over" each PLP alphanumeric combination, "militat[ing] against a determination that [it] has created a public forum." Id. at 2251, 286. The BMV has never opened PLPs "for indiscriminate use by the general public" or "granted [PLPs] as a matter of course" to every applicant. Perry Educ. Ass'n, 460 U.S. at 47, 103 S.Ct. at 956, 74 L.Ed.2d at 806. Instead, it requires that every alphanumeric combination be submitted, reviewed, and approved before it can be displayed.
Furthermore, the nature of Indiana's PLPs is not compatible with expressive activity. Because PLPs are small and contain a maximum of eight characters, they cannot realistically promote meaningful discourse, communication, and debate. See Ind.Code § 9-18-2-32. The primary purpose of PLPs is to register vehicles, "not to `encourage a diversity of views from private speakers. . . .'" United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 206, 123 S.Ct. 2297, 2305, 156 L.Ed.2d. 221, 233 (2003) (quoting Rosenberger, 515 U.S. at 834, 115 S.Ct. at 2519, 132 L.Ed.2d at 718). And, as explained by the United States Supreme Court, "where the principal function of the property would be disrupted by expressive activity, [we are] particularly reluctant to hold that the government intended to designate a public forum." Cornelius, 473 U.S. at 804, 105 S.Ct. at 3450, 87 L.Ed.2d at 581. Under this precedent, the primary purpose of PLPs reinforces our conclusion that PLPs are neither a limited nor a designated public forum.
Third, PLPs are not a nonpublic forum, which exists "[w]here the government is acting as a proprietor, managing its internal operations." Walker, 135 S.Ct. at 2251, 192 L.Ed.2d at 287 (quoting Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541, 549 (1992)) (alteration in original). When the government "simply manag[es] government property," and that government property is used for private speech, nonpublic forum analysis applies. Id. In fact, in some nonpublic forums, government speech may exist alongside private speech. This happened in Perry Educational Association, where a nonpublic forum-an interschool mail system-transmitted "official messages," "personal messages," and "messages from various private organizations." 460 U.S. at 39, 103 S.Ct. at 952, 74 L.Ed.2d at 801. But when government property is used for government speech, and that government speech necessarily crowds out all private speech on the same property, nonpublic forum analysis is misplaced. Such is the case here.
As established above, license plates, even those with personalized alphanumeric combinations, are government speech. Private speech on license plates is prohibited and impractical even outside the alphanumeric combinations at issue in this case. In addition to the eight-character PLP limitation, Indiana requires motorists to keep their plates "free from foreign materials and in a condition to be clearly
PLPs are government speech, and Indiana "is not barred by the Free Speech Clause from determining the content of what it says." Walker, 135 S.Ct. at 2245, 192 L.Ed.2d at 281 (citing Summum, 555 U.S. at 467-68, 129 S.Ct. at 1131, 172 L.Ed.2d at 861). This is because "the Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." Summum, 555 U.S. at 467, 129 S.Ct. at 1131, 172 L.Ed.2d at 861. The plaintiffs' argument that the PLP regulations are not content-neutral therefore cannot succeed. "A government entity," after all, "has the right to speak for itself . . . and to select the views that it wants to express." Id. at 467-68, 129 S.Ct. at 1131, 172 L.Ed.2d at 861 (quoting Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 1354, 146 L.Ed.2d 193, 205 (2000)) (internal quotation omitted). The plaintiffs warn that this conclusion will lead to Establishment Clause and Free Speech Clause violations, equal protection violations, embarrassment for the state, and employment discrimination claims. Because none of these issues are presented by the facts of this case, we decline to address them.
The plaintiffs also argue that the PLP regulations are overbroad and vague. We decline to address these challenges because they are moot. An appeal or issue can become moot in various ways: (1) when it is no longer `live' or when the parties lack a legally cognizable interest in the outcome; (2) when the principal questions in issue have ceased to be matters of real controversy between the parties; or, (3) when the court on appeal is unable to render effective relief upon an issue. See Matter of Tina T., 579 N.E.2d 48, 52 (Ind. 1991). Because the government is speaking, the BMV may deny or revoke PLPs regardless of the challenged regulations. The plaintiffs' involvement is limited to the request for and display of PLP alphanumeric combinations, neither of which is affected by the overbreadth and vagueness challenges. The plaintiffs, then, "lack a legally cognizable interest in the outcome" and this Court "is unable to render effective relief" on these challenges. Id.
Finally, the plaintiffs claim that the BMV provides inadequate notice after a PLP denial or revocation, violating due process. Specifically, they argue that "custom and practice" create "a property interest secured by due process." Appellee's Br. at 44-45. The BMV responds that "[m]otorists have no protected interest in possessing a personalized plate that displays any particular message" because "there is no `entitlement' to a personalized license plate." Appellant's Br. at 41; Appellant's Reply Br. at 23. Agreeing with the BMV, we find that the plaintiffs have not been deprived of due process.
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972). The plaintiffs assert that they have a property interest in their PLPs-one created by "rules or understandings that stem from an independent source such as state
While the plaintiffs rely on "understanding, custom and practice," they do not specifically identify any supporting relevant understandings, customs, or practices. These vague and undefined references cannot support a property interest under the Fourteenth Amendment. See Castle Rock, 545 U.S. at 763-64, 125 S.Ct. at 2807-08, 162 L.Ed.2d at 673-74. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d. at 561 (emphasis added). The plaintiffs do not have that claim of entitlement, and thus, Due Process Clause protections do not apply. Without due process protections, the applicants whose PLPs are denied or revoked have no entitlement to reasons for the BMV's decision or to a hearing where they can present evidence.
Indiana's personalized license plates are government speech. The Bureau of Motor Vehicles, therefore, does not violate the First or Fourteenth Amendments in denying an application for a PLP or revoking a previously issued PLP. Furthermore, Due Process Clause protections do not apply because vehicle owners do not have a property interest in their personalized license plates. We reverse the trial court's grant of the plaintiffs' motion for summary judgment as to these issues and direct the trial court to enter summary judgment on these claims for the BMV.
RUSH, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.