This matter was reversed and remanded to the Utah State Tax Commission pursuant to a decision of the Supreme Court of the State of Utah which was filed on January 29, 1999. On the 9^th day of February, 1999 a status conference was convened at the Utah State Tax Commission at which counsel for the respective parties entered their appearances. Brian Barnard, Attorney at Law, appeared on behalf of the Petitioners, Michael McBride, a member of the Oglala Sioux Tribe, and Jay Brummett, a member of the Lakota Sioux Tribe, both of whom are Native American residents of the State of Utah. Gale Francis, of the Utah Attorney General's Office, appeared on behalf of Respondent, the Customer Service Division of the Utah State Tax Commission.

The parties stipulated that the matter should be decided on the existing record and both waived their right to a hearing, argument or the filing of additional briefs. Subsequent to a notice by Respondent that it would not file a Petition for Rehearing, the record was returned to the Utah State Tax Commission on February 19, 1999.

This case involves Petitioners' request that the Tax Commission "revoke three personalized license plates containing the word or letter combinations 'REDSKIN', 'REDSKINS', and 'RDSKIN'." (Michael McBride & Jay Brummett v. Motor Vehicle Division of Utah State Tax Commission and Utah State Tax Commission, Respondents, No. 960422, 1999 at p.1)

Pursuant to the decision of the Supreme Court we are directed to hold further proceedings consistent with the order of the court, which concluded that the Utah State Tax Commission

"did not apply the correct test in determining whether a license plate contains a prohibited connotation or expression." (Id at p. 7) The standard we are instructed to apply is "whether an objective, reasonable person would conclude that the term "redskin" contains any vulgar, derogatory, profane, or obscene connotation, or expresses contempt, ridicule, or superiority of race or ethnic heritage. [See Kahn v. Department of Motor Vehicles, 20 Cal. Rptr. 2d 6, 13 (Ct. App. 1993)] ("The test is what people of ordinary intelligence (who know the language in question) would understand from the use of the word."). If such a person would conclude that the term carries a prohibited connotation, rule 873-22M-34 prohibits the Commission from issuing a license plate carrying that term." (Id at p. 7)

41-1a-411. Application for personalized plates - Refusal authorized.

(1) An applicant for personalized license plates or renewal of the plates shall file an application for the plates in the form and by the date the division requires, indicating the combination of letters, numbers, or both requested as a registration number.

(2) The division may refuse to issue any combination of letters, numbers, or both that may carry connotations offensive to good taste and decency or that would be misleading.

A. The personalized plate is a non-public forum. Nothing in the issuance of a personalized plate creates a designated or limited public forum. The presence of a personalized plate on a vehicle does not make the plate a traditional public forum.

B. Pursuant to Section 41-1a-411(2), the division may not issue personalized license plates in the following formats:

1. Combination of letters, words, or numbers with any connotation that is vulgar, derogatory, profane, or obscene.

2. Combinations of letters, words, or numbers that connote breasts, genitalia, pubic area, buttocks, or relate to sexual and eliminatory functions. Additionally, "69" formats are prohibited unless used in a combination with the vehicle make, for example, "69 CHEV."

3. Combinations of letters, words, or numbers that connote the substance, paraphernalia, sale, user, purveyor of, or physiological state produced by any illicit drug, narcotic, or intoxicant.

4. Combinations of letters, words, or numbers that express contempt, ridicule, or superiority of a race, religion, deity, ethnic heritage, gender, or political affiliation.

C. If the division denies a requested combination, the applicant may request a review of the denial, in writing, within 15 days from the date of notification. The request must be directed to the Director of the Motor Vehicle Division and should include a detailed statement of the reasons why the applicant believes the requested license plates are not offensive or misleading.

D. The director shall review the format for connotations that may reasonably be detected through linguistic, numerical, or phonetic modes of communication. The review may include:

1. translation from foreign languages;

2. an upside down or reverse reading of the requested format;

3. the use of references such as dictionaries or glossaries of slang, foreign language, or drug terms.

E. The director shall consider the applicant's declared definition of the format, if provided.

F. If the requested format is rejected by the director, the division shall notify the applicant in writing of the right to appeal the decision through the appeals process outlined in Tax Commission rule R861-1-4A.

G. If, after issuance of a personalized license plate, the commission becomes aware through written complaint that the format may be prohibited under B., the division shall again review the format.

H. If the division determines pursuant to F. that the issued format is prohibited, the holder of the plates shall be notified in writing and directed to surrender the plates. This determination is subject to the review and appeal procedures outlined in B. through E.

I. A holder required to surrender license plates shall be issued a refund for the amount of the personalized license plate application fee and for the prorated amount of the personalized license plate annual renewal fee, or shall be allowed to apply for replacement personalized license plates at no additional cost.

J. If the holder of plates found to be prohibited fails to voluntarily surrender the plates within 30 days after the mailing of the notice of the division's final decision that the format is prohibited, the division shall cancel the personalized license plates and suspend the vehicle registration.
 

Since its inception, there has been a proliferation of personal and vanity license plates. The statutes and rules, applicable to this proceeding do not articulate an objective standard by which to determine in license plates what may be "offensive to good taste and decency (Section 41-1a-411(2)) or "vulgar, derogatory, profane, or obscene." (Rule 873-22M-34 B 1) In its prior decision, the Tax Commission was, understandably, unable to agree on the appropriate applicable standard. Applying the reasonable person standard, as articulated in the Supreme Court decision, we conclude that the objective, reasonable person required to determine if there is "any connotation that" the term Redskin is "derogatory," or expresses contempt or ridicule for a race or ethnic heritage, (Rule 873-22M-34 B 1) would be led to the inescapable conclusion that the term has at least one such connotation. We therefore order that the license plates the subject of this proceeding should be and are hereby revoked. It is so ordered.

BY ORDER OF THE UTAH STATE TAX COMMISSION:

DATED this   26th day of February, 1999.
 

Richard B. McKeown Commission Chair	Joe B. Pacheco  Commissioner
Pam Hendrickson Commissioner	R. Bruce Johnson  Commissioner

 

Notice of Appeal Rights: You have twenty (20) days after the date of this order to file a Request for Reconsideration with the Tax Commission Appeals Unit pursuant to Utah Code Ann. 63-46b-13. A Request for Reconsideration must allege newly discovered evidence or a mistake of law or fact. If you do not file a Request for Reconsideration with the Commission, this order constitutes final agency action. You have thirty (30) days after the date of this order to pursue judicial review of this order in accordance with Utah Code Ann. 59-1-601 and 63-46b-13 et. seq.

ssw/96-0095.ord