Case 7:99-cv-00530-JLK Document 47 Filed 06/26/15 Page 1 of 7 Pageid#: 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA
Danville Division
SONS OF CONFEDERATE VETERANS,
INC., and VIRGINIA DIVISION OF
SONS OF CONFEDERATE VETERANS,
INC.,
Plaintiffs,
v.
RICHARD D. HOLCOMB,
COMMISSIONER, Virginia Department
of Motor Vehicles,
Defendant.

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Civil Action No. 7:99-CV-00530 -- JLK

MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANTS
MOTION TO VACATE JUDGMENT AND TO DISSOLVE INJUNCTION
More than fourteen years ago, this Court entered an order (Dkt. No. 24) enjoining the
Commissioner of the Virginia Department of Motor Vehicles from enforcing the second sentence
of Virginia Code 46.2-746.22. Under that second sentence, the General Assembly had barred
the DMV from including any logo or emblem on specialty license plates honoring the Sons of
Confederate Veterans (the SCV). Since then, the DMV has been issuing specialty license
plates with the SCVs logo, which encompasses the Confederate battle flag. This Court granted
the injunction based on its legal conclusion that messages conveyed by specialty license plates
constitute private speech, not government speech, and that such private speech could not be
restricted by the government. The Fourth Circuit affirmed based on the same reasoning.
Last week, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., No. 14-144,
2015 WL 2473375 (U.S. June 18, 2015)a case challenging Texass rejection of the
Confederate battle flag on the SCVs specialty license platesthe Supreme Court held that the

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specialty license plates at issue in Walker constitute government speech, not private speech, and,
therefore, may be restricted by the government. Walker overruled the legal basis for the
judgment and injunction in this case, and made clear that the General Assemblys restriction on
SCV logos and emblems in Virginia Code 46.2-746.22 is constitutional.
As a result of this fundamental change in law, Defendant moves this Court, under Federal
Rules of Civil Procedure 60(b)(5) and 60(b)(6), to vacate the judgment and dissolve the
injunction.
BACKGROUND
In its Amended Complaint, filed in November 1999, the Sons of Confederate Veterans,
Inc. and the Virginia Division of the Sons of Confederate Veterans, Inc. (collectively the SCV)
alleged that the second sentence of Virginia Code 46.2-746.22 violates the First, Fifth, and
Fourteenth Amendments. (Dkt. No. 8.) Section 46.2-746.22 provides:
On receipt of an application therefor and written evidence that the
applicant is a member of the Sons of Confederate Veterans, the
Commissioner [of the DMV] shall issue special license plates to members
of the Sons of Confederate Veterans. No logo or emblem of any
description shall be displayed or incorporated into the design of license
plates under this section.
Va. Code Ann. 46.2-746.22 (2014).
In light of the second sentence, the Defendant rejected the SCVs request to place the SCV logo
on specialty plates issued under that statute. The logo depicts a Confederate battle flag that was
used by some army units of the Confederate States of America, and that is commonly referred to
today as the Confederate flag.
On January 18, 2001, this Court entered an order enjoining the Commonwealth from
enforcing the second sentence of 46.2-746.22 and ordering the Defendant to issue specialty
license plates designed by Plaintiffs that comply with the content-neutral parameters with which
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all other specialty plates must comply. (Dkt. No. 24.) The Defendant appealed to the U.S.
Court of Appeals for the Fourth Circuit. (Dkt. No. 27.) The Fourth Circuit affirmed. Sons of
Confederate Veterans, Inc. v. Commr of Virginia Dept of Motor Vehicles, 288 F.3d 610, 629 (4th
Cir. 2002).
By a 6-5 vote, the Fourth Circuit denied Defendants petition for rehearing en banc. Sons of
Confederate Veterans, Inc. v. Commr of Virginia Dept of Motor Vehicles, 305 F.3d 241, 242 (4th
Cir. 2002). In his dissenting opinion, Judge Niemeyer explained that because Virginia owns the
license plates it issues and rightfully controls what appears on them, it can, as part of its control,
designate their content as its own speech. Id. at 249 (Niemeyer, J., dissenting). Judge Gregory
also dissented from the denial of en banc review, concluding that the panel did not fully and
adequately analyze the government speech aspect of this case. Id. at 251 (Gregory, J.,
dissenting).
Since then, the DMV has issued SCV specialty license plates that include the SCVs
Confederate battle flag emblem.
On June 18, 2015, the United States Supreme Court issued its opinion in Walker. Walker
involved a challenge to Texass rejection of an SCV application for specialty license plates
featuring its Confederate battle flag emblem. Walker, slip. op. at *3. Like the Plaintiffs in this
case, the Walker plaintiffs argued that Texass decision not to provide specialty plates with the
Confederate battle flag violated their First Amendment right to free speech. Id. at *4. The Court
rejected that argument, finding that the specialty license plates at issue are government speech,
and the State is not required to include the SCV logo or Confederate battle flag on governmentissued license plates. See id. at *13.

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ARGUMENT
Under Federal Rule of Civil Procedure 60(b), a court may relieve a party or its legal
representative from . . . a final judgment, order, or proceeding when applying [the judgment]
prospectively is no longer equitable or for any other reason that justifies relief. Fed. R. Civ. P.
60(b)(5), (b)(6). A court may provide relief under Rule 60(b)(5) when a significant change in
either factual conditions or in law renders continued enforcement detrimental to the public
interest. Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367, 384 (1992)); L.J. v. Wilbon, 633 F.3d 297, 305 (4th Cir. 2011) (same).
In granting a Rule 60(b)(5) motion [a] court may recognize subsequent changes in either
statutory or decisional law. Agostini v. Felton, 521 U.S. 203, 215 (1997). The party requesting
relief bears the burden of establishing [that changes in the law] warrant relief, but once a party
carries this burden, a court abuses its discretion when it refuses to modify an injunction . . . decree
in light of such changes. Horne, 557 U.S. at 447 (quoting Agostini v. Felton, 521 U.S. 203, 215
(1997)) (internal citations omitted).
The Supreme Courts decision last week in Walker is exactly the type of significant
change in law that requires relief from the judgment under Rule 60(b)(5) and (b)(6). This Courts
2001 decision invalidating the second sentence of 46.2-746.22 turned on whether the design of
specialty plates is government or private speech. 129 F. Supp. 2d at 943 (describing the initial
inquiry as whether the license plate design implicates Plaintiffs rights at all, or whether the design
is speech of the Commonwealth). The Court recognized that the threshold issue was pivotal. Id.
Thus, the Court agreed that [i]f Defendant is correct in asserting that the specialty plates represent
government speech, then the First Amendment rights of the Plaintiffs are not implicated

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whatsoever. Id. (emphasis added). But the Court concluded, instead, that private speech was
implicated, not government speech. Id.
The Fourth Circuits affirmance of that decision was also predicated on whether specialty
license plates constituted government speech. The Court of Appeals concluded that the SCVs
special plates constitute private speech, 288 F.3d 610 at 621, and [b]ecause the speech on the
authorized special plate is the SCVs rather than Virginias, the SCVs First Amendment rights
are implicated. Id. at 622. The court recognized the lack of clear legal guidance at the time,
and said that [n]o clear standard has yet been enunciated in our circuit or by the Supreme Court for
determining when the government is speaking and thus able to draw viewpoint-based
distinctions. Id. at 618. Concluding that the specialty plate restriction affected private speech,
triggering strict scrutiny, the Fourth Circuit held that the logo restriction in 46.2-746.22
amounted to impermissible viewpoint discrimination; it therefore affirmed the injunction and
order. Id. at 627-28.
Thus, both this Court and the Fourth Circuit grounded their analyses on a legal conclusion
that the Supreme Court has now overruled. The Supreme Court made clear in Walker that
specialty license plates issued pursuant to [a States] statutory scheme convey government speech.
Walker, slip. op. at *6 (emphasis added). Comparing specialty license plates to government IDs,
the Court explained that license plate designs convey government agreement with the message
displayed. Id. at *8. Therefore, license plates are not traditional public forums for private
speech. Id. at *9. [T]he designs that are accepted are meant to convey and have the effect of
conveying a government message and they constitute government speech. Id. at *10 (quoting
Pleasant Grove City v. Summum, 555 U.S. 460, 472 (2009)).

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It is a well settled point of law that when the government speaks, the First Amendment
strictures that attend the various types of government-established forums do not apply. Id. at 10.
A State government is entitled to promote a program, espouse a policy, or take a position. In
doing so, it represents its citizens and it carries out its duties on their behalf. Id. at *6.
Accordingly, it is now the law of the land that States may decide, as the Commonwealth of
Virginia did in 1999, not to place the Confederate battle flag emblem on their specialty license
plates.
Walker provides more than sufficient grounds to trigger relief under Rule 60(b)(5).
Indeed, continued enforcement of the injunction in this case grievously injures the public interest.
The General Assembly voted in 1999 to authorize SCV specialty license plates only if those plates
contained no emblem or symbol. For the past fourteen years, the DMV has been required to issue
SCV plates with Confederate battle flag emblems, in violation of the unmistakable dictate of
Virginias duly elected representatives. [A]ny time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form of irreparable injury. Maryland v.
King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (citation omitted). In light of the change in
law under Walker, the legal basis for the Courts prior judgment and injunction is no longer valid,
and continued operation of the injunction is unjust, inequitable, and contrary to the public interest.
CONCLUSION
The Court should vacate the judgment and dissolve the injunction entered on January 18,
2001 (Dkt. No. 24).
Respectfully submitted,
RICHARD D. HOLCOMB, Commissioner of the
Virginia Department of Motor Vehicles
By:
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/s/

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Janet L. Westbrook (VSB #44649)

Senior Assistant Attorney General
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-4596
Fax: (804) 692-1647
jwestbrook@oag.state.va.us
Counsel for Richard D. Holcomb,
Commissioner
Mark R. Herring
Attorney General of Virginia
Stuart A. Raphael (VSB #30380)
Solicitor General of Virginia
sraphael@oag.state.va.us
Jeffrey M. Bourne (VSB #75951)
Deputy Attorney General
jbourne@oag.state.va.us
Rhodes B. Ritenour (VSB #71406)
Deputy Attorney General
rritenour@oag.state.va.us
Trevor S. Cox (VSB #78396)
Deputy Solicitor General
tcox@oag.state.va.us
Carly L. Rush (VSB #87968)
Assistant Attorney General
crush@oag.state.va.us
CERTIFICATE OF SERVICE
I certify that on June 26, 2015, a true copy of this document was filed electronically with the
Clerk of the Court using the CM/ECF system, which will then send an electronic notification to the
Plaintiffs counsel of record.
/s/
Janet L. Westbrook