Guidelines for Filing a Complaint with the Department of Motor Vehicles
This document is designed as a guide to help those who wish to file a complaint with their respective state Department of Motor Vehicles concerning the use of the word "redskins" and its variants on personalized license plates.
Much of the information found in this outline has been made available by the Los Angeles based organization, "Advocates for American Indian Children" (AAIC) and, in particular, Eugene Herrod, an active member of that group. Along with other good work, including playing a key role in the removal of "Indian" mascots from the Los Angeles Unified School District, the AAIC was responsible for the successful filing of a DMV complaint in California. Evidence for the administrative hearing in that case was prepared by California Indian Legal Services. The California complaint capitalized on the groundbreaking Utah Supreme Court decision noted below. It is upon these victories, along with the 1999 United States Patent and Trademark Office findings, that this campaign is based.
To help make the process of filing a complaint as easy and convenient as possible this outline contains suggested research, sample letters used in California and Utah, definitions, documents, and other information.
To file a complaint there are a couple of preliminary steps that should be followed.
1) ¨ Research the DMV policy in your state concerning personalized plates. The goal is to determine if certain vulgar words, ethnic slurs, etc. are prohibited and, if so, what specific statutes or regulations they fall under. Further, if specific cases can be identified where personalized plates have been revoked or denied because of their offensive nature, such information should also be obtained where possible. An online source for state DMV links can be found at: http://cache.cow.net/~friedman/dmv.html Another research site, which was suggested by California Indian Legal Services, may help find pertinent cases or codes and is located at: http://www.findlaw.com/casecode/state.html .
2) ¨ Also through the DMV, where possible, determine that the "r-word" and variants such as Redskin, Redskn, Rdskins, Redskinz, Redskns, are in use on personalized license plates. Eugene Herrod has graciously offered to use investigative resources available to him through his work to assist with this research. Note, however, that while Eugene is willing to do this voluntarily and without cost, there are fees charged by the various DMVs that may vary from state to state. Check with Eugene for details. He can be reached by e-mail at scicgg@earthlink.net or by calling (323)-668-7733.
3) ¨ Prepare a list of dictionary definitions of the "r-word." A sample list of definitions is found below.
4) ¨ Solicit affidavits about the "r-word" from American Indian educators in your state. For example, in California, Duane Champagne, Director of the American Indian Studies Center at UCLA, submitted an affidavit as part of the compilation of documents. The AAIC obtained two more similar legal documents from a professor of Anthropology at USC, and the Executive Director of the Southern California Indian Center. All the affidavits contained statements reflecting their professional opinion of the degrading term.
5) ¨ Gather other supporting documentation that will be used in filing the complaint. This will include court findings from decisions on this matter that have been reached in other states. Presently, such decisions are available for Utah and California. Copies of these decisions are shown below. Also cite the 1999 United States Patent and Trademark Office decision which denied the Washington, D.C., football team copyright protection on its name. Although the decision is quite lengthy a copy of the opening page and decision might be useful and are included below. The complete decision can be found here: http://www.oblon.com/Uspto/Ttab/1900/00/seeker.php3?21069.html Other relevant news articles can also be included.
6) ¨ Write a cover letter that will be submitted as the complaint. A group should preferably submit the complaint, rather than an individual, as it appears state agencies are more likely to respond. Complaint letters that were submitted by the AAIC and in the Utah case are included below as examples.
7) ¨ Where possible, have an attorney review the letter and complaint attachments.
8) ¨ Send your complaint via certified mail and ask for a delivery receipt. That way, if you do not receive a respond in 30 days, you can write them again and threaten legal action. In California, the AAIC didn't hear a peep from the DMV until sending a second letter.
Webster's Third New International Dictionary (Unabridged)
Copyright 1986 by Merriam-Webster, Inc.
Redskin/ n.: a No. American Indian
usu. taken to be offensive
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http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=redskin
Merriam-Webster's Collegiate Dictionary
Main Entry: red·skin
Pronunciation: 'red-"skin
Function: noun
Date: 1699
usually offensive : AMERICAN INDIAN
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The American Heritage® Dictionary of the English Language: Third Edition. 1996.
redskin.
SYLLABICATION: red·skin
PRONUNCIATION: ´´´
NOUN: OffensiveSlang Used as a disparaging term for a Native American.
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http://www.dictionary.com/cgi-bin/dict.pl?term=redskin
Dictionary.com
red·skin (rdskn)
n. Offensive Slang
Used as a disparaging term for a Native American.
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http://www.infoplease.com/ipd/A0619953.html
Information Please
red•skin
Pronunciation: (red'skin"), [key]
—n. Slang (often disparaging and offensive).
a North American Indian.
Wordsmyth
redskin
Part of speech: noun
Syllables: red-skin
Definition: (offensive slang) an American Indian.
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http://www.notredame.ac.jp/cgi-bin/wn?redskin
WordNet 1.6 Vocabulary Helper: redskin
Overview of noun redskin
The noun redskin has 1 sense (no senses from tagged texts)
1. Redskin, Injun, red man -- (offensive terms for Native Americans)
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Synonyms/Hypernyms (Ordered by Frequency) of noun redskin
1 sense of redskin
Sense 1
Redskin, Injun, red man -- (offensive terms for Native Americans)
Indian, North American Indian, American Indian, Red Indian -- (a member of the
race of people living in North America when Europeans arrived)
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Coordinate Terms of noun redskin
1 sense of redskin
Sense 1
Redskin, Injun, red man -- (offensive terms for Native Americans)
July 2, 1999
State of California
Department of Motor Vehicles
Special Processing Unit
P.O. Box 932-345
Sacramento, CA 94232-3450
Attn: Lauretti Anselmi
Re: California Personalized License Plates: Redskins, Redskin, Redskn, Redskns, Rdskins
Dear Ms. Anselmi:
Based upon research provided by volunteers of our community, we have been
informed that the above plates have been issued and are in use by five (5)
vehicles using various forms of the term, "Redskin(s)."
The Advocates for American Indian Children, an organization that works primarily
with American Indian children, finds the use and continued application of the
term deplorable. Historically and presently, the connotation of the word equates
to a racial slur in reference to American
Indians.
Based on The California Code of Regulations, Article 3.1 Special Plates
(Environmental License Plates), Sec.(D)., the Department shall refuse any
configuration that may carry connotation offensive to good taste and decency, or
which would be misleading, based on certain criteria which includes, but is not
limited to, the following:
2. The configuration is a vulgar term; a term of contempt, prejudice, or hostility; an insulting or degrading term; a racially degrading term; or an ethnically degrading term.
4. The configuration has a negative connotation to a specific group.
For your review, we submit a basic dictionary definition of
the word from Webster's Ninth New Collegiate Dictionary: Redskin \'red-skin\ n.
(1699) : American Indian - usu. taken to be offensive. (See attached.)
Additionally, the Utah State Tax Commission has revoked three license plates
bearing variations of the word, thereby ruling the use of the term(s) to be a
racial slur. (See attached; The Salt Lake Tribune, March 4, 1999.)
Further, the United States Patent and Trademark Office has ruled the Washington
Redskins logo to be derogatory based on a 1946 trademark law. (See attached;
Washington Post, April 3, 1999.)
Therefore, we respectfully request your office to recall these plates pursuant
to the above cited regulation and additional legal precedents.
Regards,
Eugene Herrod
cc: Jill Shively, American Indian Legal Assistance Program
Lori Nelson, National Conference for Community and Justice
Joanne Willis Newton, California Indian Legal Services
---------------------------------------------------------------
Thank you,
Holly Tomren
Advocates for American Indian Children
214 East Fifth South Street
Salt Lake City, Utah 84111-3204
(801) 328-9531
|
Attorneys: |
Fax Number |
December 24, 1995
STATE OF UTAH
UTAH STATE TAX COMMISSION
DIVISION OF MOTOR VEHICLES
ATTN: Rick Leimbach, Director
PERSONALIZED PLATE DIVISION
STATE FAIR GROUNDS
1095 MOTOR AVENUE
SALT LAKE CITY, UTAH 84116
Dear Mr. Leimbach:
I represent Michael McBride and Jay Brummett. Mr. Brummett is a member of the
Lakota Sioux tribe. Mr McBride is a member of the Oglala Sioux. They are
American Indians.
With regard to state issued personalized license plates, pursuant to Ut. Code
Ann. 41-1a-411(2) (1953 as amended), the Utah State Commission and the Motor
Vehicle "division may refuse to issue any combination of letters, numbers,
or both that may carry connotations offensive to good taste and decency . .
."
Pursuant to Administrative Rule R873-22-34M(B)(1), the Utah State Commission
shall not issue a personalized license plate that contains a combination of
letters with any connotation that is vulgar, derogatory, profane or obscene.
Pursuant to Administrative Rule R873-22-34M(B)(4), the Utah State Commission
shall not issue a personalized license plate that contains a combination of
letters that express contempt, ridicule or superiority of a defined class of
person, including but not limited to race or ethnic heritage.
My clients have been informed and have seen photos of a Utah license plate on a
private automobile bearing the word "REDSKIN". Apparently there are
two (2) other personalized plates that have been issued in the past and bear the
words or letters "REDSKN" and "REDSKNS" which convey the
same meaning.
These three (3) words and plates violate the two (2) rules and statute cited
above. The terms are derogatory and express contempt and ridicule for American
Indians.
The word "REDSKIN" is unquestionably an offensive ethnic slur. That
there may be other meanings to or uses of the word is irrelevant.
The fact that the Washington, D.C. National Football League
team continues to use a derogatory and distasteful term as its team name does
not change the underlying nature of the word "REDSKIN." That the
holders of these personalized license plates may be avid supporters of a
football team does not change the offensive nature of the word.
The Division and the Commission must act based upon good taste and decency and
not the personal claims of the individuals that seek to have distasteful terms
on personalized license plates. The Utah Court of Appeals recently indicated
that a determination as to the nature of a term on a personalized license plate
must be made with reference to the target of the insult. Barnard v. Utah
State Tax Commission, et al, P.2d, 275 Ut.Adv.Rep. 47 (October 19,
1995). According to that Court, on ly the target of a slur has
"standing" under law to complain to the Tax Commission, therefore the
determination as to the offensive nature of the term, must be reviewed from the
viewpoint of the targeted group. Id., 49.
On behalf of my clients, please consider this letter a formal complaint under
Administrative Rule R873-22-34M(G) that the personalized license plates
"REDSKIN", "REDSKN", and "REDSKNS" are in
violation of Administrative Rule R873-22-34M AND Ut. Code Ann. 41 -1A-411 (1953
as amended). The Tax Commission and the Division should, pursuant to that rule
and statute revoke the plates and ask for surrender of the personalized license
plates.
Members of the Native American community may desire to express their opinions on
this issue when the matter is considered by your division and/or by the Tax
Commission.
I have attached for your consideration a copy of an editorial written by Tim
Giago and published in The Salt Lake Tribune. That editorial may give you some
insight into the problem.
I request a full hearing and full record before your division so that the Tax
Commission and the Utah appellate court may review your actions. Barnard
v. Utah State Tax Commission, et al, P.2d, 275 Ut.Adv.Rep. 47, 49
(October 19, 1995) .
Thank you for your prompt attention and action.
BRIAN M. BARNARD
Attorney at Law
Enc. (1)
cc: Clients
Val Oveson,
Chair, Utah Tax Commission
210 North 1950 West Street
Salt Lake City, Utah 84134
Susan Barnum
Assistant Attorney General
Janet Graham
Attorney General
50 South Main Street #900
Salt Lake City, Utah 84144
Janice Perry
Public Relations Department
Utah State Tax Commission
210 North 1950 West Street
Salt Lake City, Utah 84134
U.S. PATENT AND TRADEMARK DECISION
THIS OPENING PAGE OF THE U.S. PATENT AND TRADEMARK DECISION IS INCLUDED FOR POSSIBLE USE AS AN ATTACHMENT. THE APPEAL BOARD’S RULING IS SHOWN BELOW. THE COMPLETE RULING CAN BE FOUND AT:
http://www.oblon.com/Uspto/Ttab/1900/00/seeker.php3?21069.html
TRADEMARK TRIAL AND APPEAL BOARD DECISIONS
02 APR 1999
Hearing:
May 27, 1998
Paper No. 100
CEW
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_______
Michael A. Lindsay and Joshua J. Burke of Dorsey & Whitney for petitioners.
John Paul Reiner, Robert L. Raskopf, Marc E. Ackerman, Claudia T. Bogdanos and Lindsey F. Goldberg of White & Case for respondent.
_______
Before Sams, Cissel and Walters, Administrative Trademark Judges.[2]
Opinion by Walters, Administrative Trademark Judge:
THIS RULING FROM THE U.S. PATENT AND TRADEMARK OFFICE, TRIAL AND TRADEMARK APPEALS BOARD IS INCLUDED HERE FOR POSSIBLE USE AS AN ATTACHMENT. THE COMPLETE DECISION CAN BE FOUND AT; http://www.oblon.com/Uspto/Ttab/1900/00/seeker.php3?21069.html
Thus, we conclude that the evidence of record establishes that, within the relevant time periods, the derogatory connotation of the word "redskin(s)" in connection with Native Americans extends to the term "Redskins," as used in respondent's marks in connection with the identified services, such that respondent's marks may be disparaging of Native Americans to a substantial composite of this group of people.
Contempt or Disrepute
We incorporate by reference our preceding analysis, discussion of the facts, and conclusions with respect to disparagement. As we have indicated, supra, the guidelines for determining whether matter in the marks in the challenged registrations may be disparaging to Native Americans are equally applicable to determining whether such matter brings Native Americans into contempt or disrepute. Thus, we conclude that the marks in each of the challenged registrations consist of or comprise matter, namely, the word or root word, "Redskin," which may bring Native Americans into contempt or disrepute.
Scandalousness
As we have indicated, supra, determining whether matter is scandalous involves, essentially, a two-step process. First, the Court or Board determines the likely meaning of the matter in question and, second, whether, in view of the likely meaning, the matter is scandalous to a substantial composite of the general public. Regarding the conclusions drawn with respect to disparagement, we incorporate by reference our discussion and conclusion that the meaning of the matter in question, namely, the word or root word "Redskin," as used by respondent in connection with its professional football team and entertainment services and as it appears in the marks herein, clearly carries the allusion to Native Americans; and that this allusion to Native Americans is reinforced by the design elements in the registered marks incorporating the profile of a Native American and a Native American spear. However, while we incorporate by reference the analysis of the facts in the discussion, supra, of whether the matter in question may disparage Native Americans, as well as the conclusions reached therein regarding the design elements in the subject marks,[128] we reach a different conclusion with respect to the alleged scandalousness of the "Redskin" portions of the marks in respondent's challenged registrations.
In particular, we find that, based on the record in this case, petitioners have not established by a preponderance of the evidence that the marks in respondent's challenged registrations consist of or comprise scandalous matter. We find that the evidence, as discussed above, does establish that, during the relevant time periods, a substantial composite of the general population would find the word "redskin(s)," as it appears in the marks herein in connection with the identified services, to be a derogatory term of reference for Native Americans. But the evidence does not establish that, during the relevant time periods, the appearance of the word "redskin(s)," in the marks herein and in connection with the identified services, would be "shocking to the sense of truth, decency, or propriety" to, or "giv[e] offense to the conscience or moral feelings [of,] excit[e] reprobation, [or] call out for condemnation" by, a substantial composite of the general population. See, In re Mavety Media Group Ltd., supra at 1925.
The record reflects the clear acceptance by a substantial composite of the general population of the use of the word "Redskins" as part of the name of respondent's football team and in connection with its entertainment services, regardless of the derogatory nature of the word vis-à vis Native Americans. This evidence includes the voluminous number of references, in both letters[129] and news articles, to respondent's football team by a substantial number of fans and the media over a long period of time from, at least, the 1940's to the present. Such continuous renown in the sport of football and acceptance of the word "Redskin(s)" in connection with respondent's football team is inconsistent with the sense of outrage by a substantial composite of the general population that would be necessary to find this word scandalous in the context of the subject marks and the identified services.
Decision: As to each of the registrations subject to the petition to cancel herein, the petition to cancel under Section 2(a) of the Act is granted on the grounds that the subject marks may disparage Native Americans and may bring them into contempt or disrepute. As to each of the registrations subject to the petition to cancel herein, the petition to cancel under Section 2(a) of the Act is denied on the ground that the subject marks consist of or comprise scandalous matter. The registrations will be canceled in due course.
J. D. Sams
R. F. Cissel
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board
California DMV Decision 2000
This important document contains much
useful information and is also made available in a printer friendly version.
California DMV Cancellation of "Redskin" License Plates
Utah State Supreme Court Decision
http://www.tax.ex.state.ut.us/pr/mcbride.htm
This opinion is
subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Michael McBride and Jay Petitioners, v. Motor Vehicle Division of Respondents |
No. 960422 F I L E D .January 29, 1999 |
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Original Proceeding in this Court
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Attorneys: |
Brian M. Barnard, Andrea J. Garland, Natasha |
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RUSSON, Justice:
¶1 Petitioners seek review of a final order of the Utah State Tax Commission denying petitioners’ request that the Commission revoke three personalized license plates containing the word or letter combinations "REDSKIN," "REDSKNS," and "RDSKIN." We are asked to determine whether the Commission’s order violated Utah Code Ann. § 41-1a-411 (1993) or Utah Administrative Code R873-22M-34 (1995). We reverse and remand for further proceedings.
FACTS
¶2 Petitioners are Native American residents of Utah who object to the use of the term "redskin" on Utah license plates. They assert that this term is offensive and derogatory, and expresses contempt and ridicule toward their heritage, ethnicity, and race in violation of Utah Code Ann. § 41-1a-411 and Utah Administrative Code R873-22M-34. In December 1995, they petitioned the Motor Vehicle Division ("Division") of the Utah State Tax Commission ("Commission") to revoke the three license plates containing the term "redskin." The Division denied their petition, and they appealed to the Commission.
¶3 The Commission, by and through the Division, is responsible for issuing personalized license plates pursuant to section 41-1a-411, which provides:
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.
Utah Code Ann. § 41-1a-411(2).
¶4 Exercising its rule-making authority, the Commission created an administrative rule for denying certain personalized license plate requests. The rule states in pertinent part:
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.
. . . .
4. Combinations of letters, words, or numbers that express contempt, ridicule, or superiority of a race, religion, deity, ethnic heritage, gender, or political affiliation.
Utah Admin. Code R873-22M-34.
¶5 On August 28, 1996, the Commission held a formal hearing. Petitioner McBride and Robert Doren, both Native Americans, testified as to their personal experiences with the term "redskin," relating that the term is offensive and derogatory to them personally, to their families, and to all Native Americans. Other Native Americans submitted affidavits to the same effect, which were received as exhibits. The plate owners also testified at the hearing, asserting that they are fans of the Washington Redskins, a National Football League team in Washington, D.C., and that the only reason they requested the plates was to show their support and admiration for that team. They further testified that they harbored no ill-will toward Native Americans and had no intent to offend anyone or convey any negative message. One of the plate owners testified that three Native Americans with whom he worked were not offended by the use of the term "redskin" on his license plate and that "one actually wore a Washington Redskins ball cap and T-shirt." Also received into evidence were the results of a survey of 425 Native American tribal leaders indicating that 72.24% of them did not find the term "Washington Redskins" offensive.
¶6 On September 9, 1996, the Commission denied petitioners’ request in a written order. The Commission determined that the same issues were raised by petitioners’ attorney in Brian M. Barnard v. Motor Vehicle Division, Appeal 94-1547, and that the final order in that appeal, dated December 22, 1994, was fully dispositive of petitioners’ appeal. The Commission attached a copy of its 1994 order and incorporated it into the 1996 order, which is the subject of this appeal.
¶7 In denying petitioners’ request, the Commission stated in its written order, "In light of the fact that the term ‘Redskin’ is used pervasively throughout our society in reference to sports teams, it is the opinion of Commissioners Oveson and Shearer that the term ‘Redskin’ is not ‘offensive’ and does not express ‘contempt, ridicule, or superiority.’" The two commissioners who constituted the majority also stated that, in their opinion, the license plates expressed positive support and were therefore well within the limits of the statute and the Commission’s rule.
¶8 Commissioner Tew wrote a concurring opinion stating that while he personally may agree that the term "redskin" is offensive, "the Commission must evaluate whether the general public, as opposed to individuals or individual groups, would consider a plate request ‘offensive to good taste and decency’ or ‘vulgar, derogatory, profane, or obscene’ or portraying ‘contempt, ridicule, or superiority.’" Because he concluded that the general public "to date" had not found the term offensive or expressive of contempt, ridicule, or superiority, he agreed with the majority that petitioners’ request should be denied.
¶9 Commissioner Pacheco wrote a dissenting opinion in which he stated, "At what point and to what point of degradation the term [redskin] becomes offensive to society I do not know, but I do know the term is offensive to some people and that should be sufficient enough grounds to revoke these license plates."
¶10 Before this court, petitioners contend that the Commission’s decision should be overturned on the following grounds: (1) that the Commission violated section 41-1a-411 of the Utah Code; (2) that the Commission violated administrative rule 873-22M-34; and (3) that the Commission’s decision was not supported by substantial evidence.
STANDARD OF REVIEW
¶11 The standard of review in this case is governed by Utah Code Ann. § 59-1-610, which states in part:
(1) When reviewing formal adjudicative proceedings commenced before the commission, the Court of Appeals or Supreme Court shall:(a) grant the commission deference concerning its written findings of fact, applying a substantial evidence standard on review; and(b) grant the commission no deference concerning its conclusions of law, applying a correction of error standard, unless there is an explicit grant of discretion contained in a statute at issue before the appellate court.
Utah Code Ann. § 59-1-610(1) (1996).
¶12 The legislature granted the Commission discretion in determining whether to grant or refuse an applicant’s request for personalized license plates. See Utah Code Ann. § 41-1a-411 ("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." (emphasis added)). When the legislature grants discretion to the Commission, we review the Commission’s actions under a reasonableness standard. See Eaton Kenway v. Auditing Div., 906 P.2d 882, 884 (Utah 1995). An agency which has been granted discretion by statute may limit its own discretion in its regulations. See Ashcroft v. Industrial Comm’n, 855 P.2d 267, 269 (Utah Ct. App. 1993). By adopting rule 873-22M-34 the Commission limited the discretion given to it by the legislature. See Utah Admin. Code R873-22M-34 (stating that "the division may not issue personalized license plates . . . with any connotation that is vulgar, derogatory, profane, or obscene." (emphasis added)). When reviewing an agency’s application of its own rules, we will not disturb its interpretation or application of its rules "unless its determination exceeds the bounds of reasonableness and rationality." Brown & Root Indus. Serv. v. Industrial Comm’n, 947 P.2d 671, 677 (Utah 1997) (citations omitted).
ANALYSIS
¶13 As is evident from the Commission’s order, the Commissioners could not agree on the appropriate test to apply in determining whether the license plates should be revoked. Commissioners Oveson and Shearer believed that their own opinions of offensiveness were controlling. Commissioner Tew, however, believed that the appropriate test was whether the "general public" would consider the plates offensive. In his dissent, Commissioner Pacheco argued that the test should be whether only "some people" are offended.
¶14 Unfortunately, neither section 41-1a-411 nor rule 873-22M-34 provides any guidance as to the appropriate test. Section 41-1a-411(2) states, "The division may refuse to issue [a license plate] that may carry connotations offensive to good taste and decency." Similarly, rule 873-22M-34 states that "the division may not issue personalized license plates . . . with any connotation that is vulgar, derogatory, profane, or obscene [or] that express[es] contempt, ridicule, or superiority of a race, religion, deity, ethnic heritage, gender or political affiliation." Neither the statutory section nor the administrative rule indicates from whose perspective the Commission should look to determine whether a particular license plate contains a prohibited connotation or expression.
¶15 Relying upon the opinion of any one person or group in determining whether a term carries a prohibited connotation is not a reasonable application of either section 41-1a-411 or rule 873-22M-34. This would be so whether the opinion is that of a government official, a Native American, a non-Native American, or the general public. For example, the personal opinions of individual commissioners should not be relevant in applying the rule, for a term that is offensive or derogatory to one commissioner may be innocuous to another. Permitting the Commission to base its decisions upon the personal opinions of its commissioners would be tantamount to allowing an agency to follow or ignore its own rules to suit its own purposes--an approach which lies at the very heart of arbitrary and capricious action and which would frustrate the Commission’s proper role to apply its rules consistently and objectively, regardless of the personal views of individual commissioners.
¶16 Likewise, it would not be reasonable for the Commission to rely upon the general public’s perception of a certain term because the general public may be wholly ignorant of a term’s connotation. For example, offensive slang in an obscure foreign language may be meaningless to the general English-speaking public; nevertheless, the reasonable person who speaks the foreign language would conclude that the slang carries an offensive connotation. See, e.g., Kahn v. Department of Motor Vehicles, 20 Cal. Rptr. 2d 6, 13 (Ct. App. 1993) (revoking license plate containing court reporter symbols representing "the four letter epithet often referred to as the ‘F-word’").
¶17 Finally, the Commission could not reasonably rely upon the opinion of any one group, whether it be small or large. Such an approach could preclude the issuance of any personalized license plate because the members of any group could assert that any given term is offensive to them. To illustrate, the Commission gave an example in its order of a complainant who challenged the issuance of a license plate bearing the combination, "O23 GNG." According to the complainant, the plate extolled the virtues of the 23rd Street Gang in Ogden, Utah. Ironically, the plate was not a personalized plate, but a normal plate bearing letters and numbers generated by computer. Nevertheless, the preceding example shows that virtually any term could be barred so long as "some people" found it offensive.
¶18 The only reasonable standard that may be applied is that of the objective, reasonable person. In other words, under rule 873-22M-34 the Commission had to determine, in light of all the evidence presented, 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, 20 Cal. Rptr. 2d at 13 ("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.
¶19 The Commission in its written order determined that the term "redskin" was not offensive either to individual commissioners or to the general public and that the term therefore did not violate either section 41-1a-411 or rule 873-22M-34. In light of the foregoing, we hold that the Commission did not apply the correct test in determining whether a license plate contains a prohibited connotation or expression. We therefore reverse the Commission’s order and remand for further proceedings consistent with this opinion.
¶20 We emphasize that we remand this case to give the Commission the opportunity to apply the correct standard to the facts in this case. While we could easily make a final disposition of many issues that come before us, we must exercise judicial restraint to maintain the integrity of our judicial system. For instance, if a trial court applies an incorrect standard in sentencing a convicted criminal, we do not sentence the criminal on appeal using the correct standard. Rather, we remand the case with instructions to the trial court to apply the correct standard. We do so because the duty of sentencing convicted criminals is within the province of the trial court, not this court.
¶21 Likewise, the Commission, not this court, has been authorized to issue and revoke personalized license plates according to the rules and regulations that it promulgates. We thus remand the case so that the Commission may fulfill its duty. While Justice Durham would step into the role of a Utah State Tax Commissioner in order to weigh the evidence and decide the issue in the first instance, see ¶ 33 ("I would hold that the objections and evidence offered by those offended should prevail."), we refuse to do so. By exercising judicial restraint, we maintain the integrity of our system, which admonishes one branch or department of the government to refrain from intruding upon the duties and functions of another.
¶22 It is so ordered.
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¶23 Chief Justice Howe concurs in Justice Russon’s opinion.
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ZIMMERMAN, Justice, concurring specially:
¶24 I join generally in the majority’s reasoning and agree with its decision to remand the matter to allow the Utah State Tax Commission the opportunity to apply the correct standard to the facts of this case.
¶25 I note that the Tax Commission’s own rule requires it to deny a personalized plate that has a term that a reasonable person would conclude has "any connotation that is . . . derogatory." Without prejudging the matter, it appears that it would be extremely difficult for a "reasonable person" to find that the term "redskin" does not have at least one offensive connotation.
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DURHAM, Associate Chief Justice, dissenting:
¶26 The end of the majority opinion’s extensive analysis is a refusal to invalidate the issuance of personalized license plates containing an acknowledged racial epithet. This court should hold that the Tax Commission violated its own administrative rule, and we should also invalidate the issuance of the plates outright instead of remanding the matter to the Tax Commission. For these reasons, I dissent.
¶27 The majority addresses whether the Commission’s action violated its own administrative rule and correctly finds that it did. In declaring that the Tax Commission violated its own administrative rule, the majority applies an objective "reasonable person" standard to which the Commission must adhere when determining whether a term carries "any" connotation that is derogatory, vulgar, profane, or obscene. Rule 873-22M-34 mandates:
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.. . . .4. Combinations of letters, words, or numbers that express contempt, ridicule, or superiority of a race, religion, deity, ethnic heritage, gender, or political affiliation.
Utah Admin. Code R873-22M-34 (1995).
¶28 The rule clearly states that "any connotation" that is derogatory, obscene, profane, or vulgar is strictly prohibited. Id. Nevertheless, the majority gratuitously, and with no analytical support, declares that "[r]elying upon the opinion of any one person or group in determining whether a term carries a prohibited connotation is not a reasonable application of either section 41-1a-411 or rule 873-22M-34." ¶ 15 (emphasis added). While the majority correctly holds that the "personal opinion" of the Tax Commissioners is not the appropriate standard of review, it also asserts that the "opinion" of the petitioners should not count either. ¶ 15. Unfortunately, the majority chooses to ignore the fact that while the Tax Commissioners apparently did rely upon their personal opinions in deciding this issue, the petitioners introduced far more than mere opinion as to the term’s offensiveness into evidence. The majority ignores (a) the dictionary definitions of the term; (b) the historical roots of the term as explained by texts and articles; (c) the actions taken by universities and city councils nationwide; and (d) the expert testimony of educators and clinical psychiatrists. The majority dismisses all of this evidence as nothing more than "opinion."
¶29 I do not understand exactly what evidence the majority would require to demonstrate that a derogatory and obscene racial slur is more than just the "opinion" of its targets and is in fact offensive. Certainly, in my mind, petitioners proved far more than just their personal opinion. The facts, ignored by the majority, are that in 1755, the British Crown offered a bounty for the scalps of Native American men, women, and children living in the New England colonies. See George Russell, American Indian Digest: Contemporary Demography of the American Indian 12-13 (1995 ed.). As stated plainly in the affidavit of a clinical psychologist:
To demonstrate that there had been a kill, soldiers were required to skin the body of the Native American and bring in the "red skin." "Redskin" is in particular a horrifying reminder of what amounted to genocide of many of the Native American people. They are acutely aware of its meaning.
Thus, the Washington Redskins football team (and the would-be owners of the personalized Utah license plates at issue here) utilize the name and symbol of the genocidal practice of paying white soldiers a bounty for the bloody skins of murdered Native Americans.
¶30 Furthermore, petitioners have cited numerous studies, affidavits, articles, and personal testimony of Native Americans who are deeply offended by the use of the term.
¶31 In addition, the majority fails to consider the current trend, clearly documented by petitioners, away from the cartoonish and derogatory use of the image of Native Americans as mascots. Saint John’s University has in recent years changed the name of its mascot from "Redmen" to "Red Storm." Sioux City Iowa has recently ceased using the name "Soos" for its minor league baseball team. The Washington Redskins have been under fire for years to change the name of its football team. On March 5, 1992, the Washington Post editorialized against the continued use of the name "Redskins" for the Washington, D.C., football team: "That the usage is common and innocently repeated out of habit makes it no less of an insensitive or insulting remark to those who are on the receiving end. We can do better." The Redskin Issue, Wash. Post, March 5, 1992, at A20. Moreover, the District of Columbia City Council has passed a resolution asking the Washington Redskins to change its team name to "a name that is not offensive to Native Americans or any other minority group." Because the team is privately owned, of course, it can take any name it wishes and ignore editorials and public opinion generally. However, it strikes me as disrespectful and presumptuous for this court to discount every piece of testimony and evidence from Native American citizens. The Tax Commission ought not to have done so, and the majority errs in following suit.
¶32 Finally and conclusively, the majority fails to address the telling, and in my mind determinative, argument that the definition of "redskin" in the dictionary mirrors almost exactly the dictionary definition of the counterpart term for another racial minority--the "n" word. "The term ‘Redskin’ has been defined by Webster’s Ninth New Collegiate Dictionary as ‘American Indian--usually taken to be offensive.’" Kimberly A. Pace, The Washington Redskins Case and the Doctrine of Disparagement: How Politically Correct Must a Trademark Be?, 22 Pepp. L. Rev. 7, 51 (1994) (quoting Webster’s Ninth New Collegiate Dictionary 987 (9th ed. 1990)). Similarly, "the term [the ‘n’ word] is defined by this same dictionary as ‘Negro--usually taken to be offensive.’" Id. at n.278. No court in this country would approve legislative enactment allowing the use of such a destructive epithet as the "n" word on a license plate. Notwithstanding this equivalence in the dictionary--an objective source indeed--the majority remands this case to the Tax Commission for further consideration. I would reverse the Tax Commission and immediately revoke the personalized plates at issue.
¶33 Based on the foregoing objections, I do not approve of the objective reasonable person standard enunciated in the majority opinion. Rather, I would hold that the objections and evidence offered by those offended should prevail. I certainly agree that the personal opinions of the Tax Commissioners are of no import, particularly after their ruling, as reported in the Salt Lake Tribune, holding that the terms "TAXLAND," "TAX2MAX," and "MINWAGE" were too offensive and derogatory to allow display on personalized license plates. See License Plates 2MAKETAX Folks See Red, Salt Lake Tribune, June 3, 1998, at B1. However, I do not agree that the opinions and compelling evidence put forward by the Native American petitioners do not provide sufficient basis to reverse the Tax Commission.
¶34 Petitioners introduced overwhelming evidence showing that the term "redskin" is derogatory and profane, that it expresses contempt and ridicule, and that it references the historical domination of a defined class of persons based on race and ethnic heritage. This evidence demonstrates conclusively that the Tax Commission violated its own rule. By ignoring evidence and by establishing an arbitrary reasonable person standard, the majority misses the mark imposed by rule 873-22M-34.
¶35 It is to be hoped that one day all offensive and derogatory language, speech, and symbols predicated on race will be completely eradicated from our culture. In the meantime, public officials have the obligation to ensure that they are not used with the imprimatur of the State.
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¶36 Justice Stewart concurs in Associate Chief Justice Durham’s dissenting opinion.