Appendix — Hill v. Kemp (No. 07-297)

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

FILED MARCH 6, 2007

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 05-5160

HAROLD E. HILL; MARGARET R. MCCRIGHT;

WILLIAM F McCRIGHT; JOHN J. McQUEEN; RITA J.

MOSKOWITZ; BARBARA SANTEE; OKLAHOMA

RELIGIOUS COALITION FOR REPRODUCTIVE

CHOICE EDUCATION FUND, INC.,

Plaintiffs-Appellants,

v.

THOMAS E. KEMP, Chairman, Oklahoma Tax Commission;

JERRY JOHNSON, Vice Chairman, Oklahoma Tax

Commission; CONNIE IRBY, Secretary-Member, Oklahoma

Tax Commission; SCOTT MEACHAM, Treasurer,

Oklahoma State Treasury; HOWARD H. HENDRICK,

Director, Oklahoma Department of Human Services; BRAD

HENRY, Governor of the State of Oklahoma; W.A. DREW

EDMONDSON, Attorney General of the State of Oklahoma,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 04-CV-28-CVE-PJC)

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Before TYMKOVICH, EBEL, and GORSUCH, Circuit

Judges.

GORSUCH, Circuit Judge.

Certain individuals who license and operate their cars

in the State of Oklahoma (the “Motorists”), together with

the Oklahoma Religious Coalition for Reproductive Choice

Education Fund, Inc. (“ORC”), argue that Oklahoma’s

Statutory scheme for specialty motor vehicle license plates

is unconstitutional under the First and Fourteenth

Amendments. In claims one through four of their amended

complaint, the Motorists contend that Oklahoma’s laws

unlawfully discriminate against their views by permitting

drivers to obtain license plates bearing the messages

“Adoption Creates Families” and “Choose Life” under terms

and conditions more favorable than those available to those

who wish to have license plates bearing messages of support

for abortion rights. In claims five and six, ORC argues that

Oklahoma uses proceeds from its specialty license plate

program to fund groups involved in adoption-related

activities but impermissibly refuses to fund ORC’s own

adoption-related efforts solely because of its separate and

distinct advocacy in favor of abortion rights.

In response to defendants’ Rule 12(b) motion to dismiss,

the district court dismissed this case on jurisdictional grounds

without reaching its merits. Specifically, the district court

held that the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341,

passed by Congress to address federal court interference with

State revenue raising efforts, precluded it from hearing claims

one through four; with respect to claims five and six, the

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court concluded that the Eleventh Amendment’s guarantee

of state immunity from suit in federal court prevented it from

exercising review. While we agree with the district court that

Congress, through the TIA, has deprived the federal courts

of jurisdiction over claims one through four, we hold that

the Eleventh Amendment does not preclude consideration

of claims five and six on their merits. We thus remand this

matter for further proceedings on those counts.

I

A

The Oklahoma Tax Commission (“Tax Commission’’)

is charged with enforcing the State’s Vehicle License and

Registration Act (“the Registration Act”). Consistent with

similar laws across the country, the Registration Act requires

that every motor vehicle owner purchase a license plate and

display it on his or her car. But, as is also increasingly typical

today, the law provides a process by which motorists can

pay an additional amount to the Tax Commission to obtain

specialty license plates conveying messages ranging from

“Veterans of Foreign Wars” to “Round and Square Dancing.”

See 47 Okla. Stat. §§ 1135.2, 1135.3, 1135.5, 1135.6.

Pertinent for our purposes, the Oklahoma Legislature in

2002 and 2004 specifically authorized specialty plates

bearing the phrases “Adoption Creates Families” and

“Choose Life.” 47 Okla. Stat. §§ 1135.5(B)(22) and (23);

2002 Okla. Sess. Laws, ch. 179 § 1 (“Choose Life” plates);

2004 Okla. Sess. Laws, ch. 504 § 14 (“Adoption Creates

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Families” plates).' These two plates were among

approximately 110 specialty plates the Legislature

specifically authorized for immediate issuance, albeit with

the further instruction that, if fewer than 100 of any kind of

plate was issued before a date certain, the Tax Commission

could stop issuing that particular plate. 47 Okla. Stat.

§ 1135.5(A).

The “Adoption Creates Families” and “Choose Life”

plates both cost $35 in addition to normal licensing charges.

47 Okla. Stat. § 1135.5(C). For the “Adoption Creates

Families” plate, $8 of the $35 charge goes to the Tax

Commission Reimbursement Fund for the administration of

the Registration Act, 47 Okla. Stat. §§ 1135.5(C)(2); $25

goes to “a revolving fund established in the State Treasury

for and to be used by the Department of Human Services

[(‘DHS’) } for the implementation of the Investing in Stronger

Oklahoma Families Act specifically for created families,’”

1. Special license plates demonstrating support for adoption

originally issued in 2001 with the phrase “Respect Life-Support

Adoption.” 2001 Okla. Sess. Laws, ch. 434 § 12. In 2004, the

legislature recodified a portion of the special license plate program,

and the adoption-support plates now bear the “Adoption Creates

Families” phrase. 2004 Okla. Sess. Laws, ch. 504 §§ 14(B)(22), 22.

2. The Investing in Stronger Oklahoma Families Act was passed

in order to “provide assistance to guardians of children, adoptive

parents and other ‘created families’, to assist such guardians, adoptive

parents and families to assume permanent custody of children in

need of safe and permanent homes, and to enhance family

preservation and the stability of these homes.” 10 Okla. Stat.

§ 22.2(B). This law authorizes DHS to provide, inter alia, case

management services, child care and after school care, transportation,

and counseling for adoptive families. /d. § 22.2(H).

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id. § 1135.5(B)(22); and the remaining $2 is apportioned

among school districts, municipalities, and various other state

funds, id. § 1135.5(C)(3).’

For the “Choose Life” plate, $8 is directed to the Tax

Commission Reimbursement Fund to cover administrative

costs associated with the Registration Act, 47 Okla. Stat.

§§ 1135.5(C)(2); $20 goes to “a revolving fund [created in

the State Treasury] for the Department of Human Services

to be designated the Choose Life Assistance Program,”

id. § 1104.6(B); and the remaining $7 is apportioned among

school districts, municipalities, and various other state funds,

see id. § 1135.5(C)(3); supra at note 3. Monies in the Choose

Life Assistance Program are disbursed by the State to non-

profit organizations that “counsel[ ] pregnant women who

are committed to placing their children for adoption.”

Id. § 1104.6(C)(3). By statute, however, organizations are

ineligible to receive funds if they are “involved or associated

with any abortion activities, including counseling for or

referrals to abortion clinics, providing medical abortion-

related procedures, or pro-abortion advertising.”

Id. § 1104.6(C)(4); see also id. § 1104.6(D) ( “Funds may

not be distributed to any organization that is involved or

3. The specific apportionment of these monies changes from

year to year, but for illustrative purposes the money is directed

roughly as follows: 36% to school districts according to a funding

formula; 45% to the State’s general revenue fund; 0.3% to the State

Transportation Fund; 11% to the counties according to various

funding formulas; about 3% to cities and towns; 1% to the Oklahoma

Law Enforcement Retirement Fund; and 0.03% to the Wildlife

Conservation Fund. 47 Okla. Stat. § 1104.

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associated with abortion activities, including counseling for

or referral to abortion clinics, providing medical abortion-

related procedures, or pro-abortion advertising.”).

While many license piates cost $35 and direct a portion

of the funds to specific state programs associated with the

message on the specialty plate, others cost less and do not

direct money to specific initiatives. Thus, for example, a

license plate expressing support for the Air Force Academy

costs $15, $8 of which is directed to the Tax Commission to

cover costs and the remainder of which is directed to school

districts, municipalities, and other general state purposes.

See 47 Okla. Stat. §§ 1135.3(B)(34), 1135.3(C); supra at note

3. Certain other license plates issued in recognition of past

military service, current public service, and the like, are

provided at $8 and funds derived from the sale of these plates

are directed exclusively to the Tax Commission to cover

administration costs. /d. §§ 1135.2(B)(1), (8) & 1135.2(C).

After plaintiffs initiated this lawsuit, the Oklahoma

Legislature decided in 2005 to expand the number of specialty

plates beyond the 110 or so it had already enumerated.

Effective January 1, 2006, the legislature authorized the Tax

Commission to design and issue specialty plates

demonstrating support for any organization, group, or cause

so long as the message does not advertise or endorse a

product, brand or service, does not promote prejudice, and

is not contrary to state civil rights laws. See 47 Okla. Stat.

§ 1135.7. It is undisputed by the parties that the Motorists

and ORC can use this new procedure to obtain license plates

displaying their preferred messages, including ones voicing

support for abortion rights. However, specialty plates issued

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under this new law may be issued only after the Tax

Commission has received 500 prepaid applications for the

particular specialty plate at issue. Jd. § 1135.7(B)(4).

As with the plates previously authorized by the

legislature, specialty plates issued under this new regime may

also be designated by their sponsors to provide financial

assistance to a state-sponsored initiative or program. Plates

designed to provide such assistance cost $35, of which $8

goes to the Tax Commission Reimbursement Fund to defray

the cost of the plates, $7 is apportioned among school

districts, municipalities, and various state funds, see id.

§ 1135.7(D)(3); supra at note 3; and $20 is directed to “a

State agency ... responsible for expending the funds

[according to the] specific public purpose” identified with

the specialty plate at issue. /d. § 1135.7(E). Motorists and

ORC do not dispute that they can design plates to provide

funding for initiatives they support, including abortion rights.

As with the preexisting statutory regime, specialty plates

authorized under Oklahoma’s new statute that are not

associated with a particular state fund or initiative cost $15,

of which $8 goes to the Tax Commission Reimbursement

Fund and $7 is.apportioned among school districts,

municipalities, and various state funds. /d. § 1135.7(C).

B

ORC is a non-profit organization that provides free

services tO pregnant women; these services include,

inter alia, counseling about “all reproductive options”

(including adoption and abortion), maintaining a “Roe” fund

to help cover costs of abortion for indigent women, and

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sending its members to “stand as a non-confrontational and

peaceful presence outside health facilities providing abortion

services.” (Am.Compl.7¥ 24, 26.) Motorists are Oklahoma

residents identifying themselves as individuals who support

“a woman’s freedom to choose among all available

reproductive options both before and after conception.”

(Id. J 16.) In claims one through four of the amended

complaint, the Motorist plaintiffs allege that Oklahoma’s

specialty license plates statutory scheme unconstitutionally

discriminates against those who wish to show their support

for “a woman’s freedom to choose among all available

reproductive options both before and after conception.” (/d.)

More specifically, they allege that those seeking a special

license plate expressing support for abortion rights are not

treated equally to those who apply for the “Choose Life” or

“Adoption Creates Families” license plates. In claims five

and six, ORC challenges the funding restrictions associated

with the Choose Life Assistance Program, arguing that the

State’s refusal to provide funds under this particular program

to groups that express support for and engage in advocacy

about abortion amounts to an “unconstitutional condition,”

requiring it to forego its protected First Amendment speech

activities in order to qualify for governmental benefits.

As remedy, the Motorists seek injunctive relief and a

declaratory judgment that Oklahoma’s entire special license

plate regime is unconstitutional,* while ORC seeks

4. Alternatively, Motorists seek relief affecting only the

issuance of “Choose Life” and “Adoption Creates Families” plates.

(Am.Compl.{q 164-65.) They do not challenge the “Physically

Disabled” and “Hearing Impaired” license plates, 47 Okla. Stat.

(Cont'd)

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declaratory and injunctive relief preventing the State from

enforcing provisions that condition a group’s entitlement to

receive funds under the Choose Life Assistance Program on

a determination that the group is not “involved or associated

with any abortion activities, including counseling for or

referrals to abortion clinics, providing medical abortion-

related procedures, or pro-abortion advertising.” 47 Okla.

Stat. § 1104.6(C)(4); see also § 1104.6(D).

Plaintiffs filed their suit on January 14, 2004, against

various State officials-the Governor, State Attorney General,

Treasurer, Director of the Department of Health and Human

Services, and certain members of the Oklahoma Tax

Commission. Without responding to the merits of plaintiffs’

claims, defendants collectively moved to dismiss the case as

a matter of law under Federal Rule of Civil Procedure 12(b).°

(Cont'd) |

§ 1135.1(B)(3) and (5), or plates on which motor vehicle owners are

allowed to pick and choose their own numbers, letters or symbols,

sometimes known as “personalized” or “vanity” plates, id. § 1135.4.

5. Courts in at least two other circuits have reached the merits

of similar claims, though their conclusions differ in significant

respects. Compare ACLU of Tenn. v. Bredesen, 441 F.3d 370 (6th

Cir.2005) (holding that Tennessee’s specialty licensing scheme,

which included a “Choose Life” plate but not a “Pro-Choice” plate,

did not violate plaintiff's First Amendment rights), with Planned

Parenthood of S.C., Inc. v. Rose, 361 F.3d 786 (4th Cir.2004) (holding

that South Carolina specialty licensing scheme authorizing a “Choose

Life” plate without a pro-choice alternative did violate plaintiff's

First Amendment rights). See also Choose Life Ill., Inc. v. White,

No. 04 C 4316, 2007 WL 178455 (N.D.IIl. January 19, 2007)

(following Fourth Circuit precedent and holding unconstitutional

Illinois’s refusal to issue “Choose Life” license plates).

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In its ruling on that motion, the district court dismissed claims

one through four on the ground that, through the TIA,

Congress denied federal courts the power to hear lawsuits

that seek to enjoin the levy or collection of state taxes, and

that the collection of assessments associated with the

specialty license plate program qualify as taxes under state

law. The district court also dismissed claims five and six on

the basis that the Eleventh Amendment immunizes

defendants from suit in federal court. Finally, the district court

held that the Governor and state Treasurer were so

tangentially related to the issues in dispute that, whatever

else the Eleventh Amendment may require, it commands their

individual dismissal under Ex parte Young, 209 U.S. 123,

157, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (requiring a plaintiff

seeking an exception to Eleventh Amendment immunity to

show, inter alia, that the state official defendants have “some

connection with the enforcement of the act” in question).°

I

A

Before assessing Motorists’s appeal with respect to

claims one through four, we must address defendants’

assertion that this portion of the appeal is moot. Seneca-

Cayuga Tribe of Okla. v. Nat'l Indian Gaming Comm'n, 327

F.3d 1019, 1028 (10th Cir.2003) (“[B]Jecause questions of

mootness go to our jurisdiction, we are required to address

this issue at the outset.”). Plaintiffs filed their initial

6. The district court’s dismissal of these individuals is not

challenged in thi: appeal.

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complaint when Oklahoma had a finite list of approximately

110 specialty plates, including the “Choose Life” plate, but

no analog expressing support for abortion rights. Oklahoma’s

2005 law changed all that, of course, permitting virtually

any group to receive specialty plates voicing support for its

cause. Defendants assert (and plaintiffs do not dispute) that

Motorists are now free to apply for and receive a specialty

plate demonstrating their support for abortion rights and even

providing financial support to abortion-related programs.

These changed circumstances, defendants argue, moot

plaintiffs’ complaint with respect to the licensing aspect of

this case.

A legislature is, of course, free to amend its own laws at

any time and thereby moot ongoing litigation. Shawnee Tribe

v. United States, 423 F.3d 1204, 1216-17 (10th Cir.2005).

Indeed, it is undoubtedly a commendable thing when the

people’s representatives are able, through the legislative

process, to defuse potentially needless constitutional

litigation. But, if after passage of the new legislation, a

plaintiff still “retain[s] a legally cognizable interest in the

outcome, the case is not moot,” and we are not free to shirk

the responsibility of deciding the remaining controversy

before us. Seneca-Cayuga Tribe, 327 F.3d at 1028 (internal

quotation marks and citation omitted); see also City of Erie

v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d

265 (2000).

This is just such a situation. While the Oklahoma

Legislature has taken a significant step in allowing groups

of all viewpoints to obtain specialty plates, a non-trivial and

arguably discriminatory burden remains on those associated

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with plaintiffs’ point of view. Under Oklahoma’s regime,

those plates specifically authorized by name by the

legislature-including the Choose Life and Adoption Creates

Families (among a great many others)-were issued

immediately, subject only to the caveat that the Tax

Commission could discontinue any plate if fewer than 100

were issued before a prescribed date. 47 Okla. Stat.

§ 1135.5(A). By contrast, under the 2005 “all comers”

statutory rubric, plates expressing support for other causes-

including abortion rights-can be issued only if and when the

Tax Commission receives 500 prepaid applications within

180 days after the particular plate is authorized. 47 Okla.

Stat. § 1135.7(B)(4). Simply put, there remains a difference

between how Oklahoma treats those who wish to obtain a

Choose Life or Adoption Creates Families plate, on the one

hand, and those who wish to obtain a license plate expressing

support for abortion rights, on the other. The latter group

has to come up with 500 prepaid applications within a

specified time frame, while the former group is presumptively

grandfathered in. The difference may not be insurmountable

or even particularly onerous, but neither does it diminish the

fact that a difference arguably preferring one competing

viewpoint over another remains embedded in Oklahoma law.

Accordingly, we are unabie to say definitively that claims

one through four are moot.

B

This leaves us confronting directly the question whether,

as the district court held and defendants maintain, the TIA

precludes our jurisdiction with respect to these claims. In

the TIA, Congress succinctly and sweepingly directed that

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federal district courts “shall not enjoin, suspend or restrain

the assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had in

the courts of such State.” 28 U.S.C. § 1341. Defendants and

the district court argue that the money paid to Oklahoma

under the specialty licensing regime falls within the ambit

of the statutory phrase “any tax under State law,” while

plaintiffs contended before the trial court and in briefing

before us that the money collected is not a tax but a regulatory

fee incident to the State’s police powers rather than its taxing

authority.

Our starting point is, as it must be, with the plain terms

of the law Congress enacted. At the time the TIA was adopted,

one contemporaneous dictionary defined the term “tax” as

“{ajn enforced, usually proportional, contribution, esp. of

money, levied on persons, income, land, commodities, etc.,

for the support of government and for the public needs;

sometimes, a charge, as for a thing.” 3 The New Century .

Dictionary of the English Language 1949 (1927). Another

dictionary defined “tax” as “[a] charge, esp. a pecuniary

burden imposed by authority; specif., a charge or burden,

usually pecuniary, laid upon persons or property for public

purposes; a forced contribution of wealth to meet the public

needs of a government.” Webster's New International

Dictionary of the English Language 2587 (2d ed.1934).

Under either definition, Oklahoma’s regime involves taxes.

Oklahoma here enforces a contribution of money levied on

the distribution of a commodity that it asserts the exclusive

power, by virtue of its sovereignty, to issue; likewise, it

plainly imposes a charge for a thing. And through its statutory

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regime, the Oklahoma Legislature generates and distributes

funds for a wide variety of public purposes.

Perhaps even more pointedly, Judge Cooley’ long ago

confronted the question how to distinguish between taxes

and fees and even how to categorize assessments that appear

to have characteristics of both. “Suppose a charge is imposed

partly for revenue and partly for regulation,” he asked, “Is it

a tax or an exercise of the police power?” 1 Thomas M.

Cooley, The Law of Taxation 98 (4th ed.1924) (hereinafter

“Cooley”). Cooley answered: “cases of this nature are to be

regarded as cases of taxation. If revenue is the primary

purpose, the imposition is a tax. Only those cases where

regulation is the primary purpose can be specially referred

to the police power.” Jd. at 99 (internal citations omitted);

see also id. at 109-10 (noting that even fees-such as for

recording and filing certificates of incorporation, for

inspections, or for docketing legal filings-can be taxes

“if the object is to provide general revenue rather than to

compensate the officers [who perform the service at issue],

and the amount of the fee has no relation to the value of the

services. ... In other words, a charge fixed by statute for the

service to be performed by an officer, where the charge has

no relation to the value of the services performed and where

the amount collected eventually finds its way into the treasury

7. The Supreme Court has continually cited to Cooley’s taxation

treatise, referring to him as a “text writer{ | of high authority.”

Parsons v. District of Columbia, 170 U.S. 45, 55, 18 S.Ct. $521, 42

L.Ed. 943 (1898); see also, e.g., Rosewell v. LaSalle Nat'l Bank,

450 U.S. 503, 523-24, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981) (citing

Cooley on Taxation in interpreting TIA’s “plain, speedy and efficient

remedy” exception).

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of the branch of the government whose officer or officers

collect the charge, is not a fee but a tax.”).

We have no qualms finding in this case that the primary

purpose of the special license plate scheme is revenue rather

than regulation and thus that it qualifies as a tax under Judge

Cooley’s formulation. Under Oklahoma’s scheme, only $8

of each plate sold goes to the administration of the

Registration Act; the remaining funds are collected to be

disbursed for a variety of public purposes identified by the

Legislature. To be sure, for $35 plates much of the remaining

money goes to specific state funds and policy objectives

associated with the license plate in question (e.g., $20 in the

case of the Choose Life plates and $25 in the case of the

Adoption Creates Families plates). But the entire community

benefits from this scheme as these funds are variously spread

among a wide array of State initiatives-ranging from adoption

and urban forestry programs to education, grants for

organizations that provide dog or cat spaying and neutering

services, and the Oklahoma National Guard, to name just a

few. And, of course, a portion of the funds for both the $35

and $15 plates (those demonstrating support for or

membership in an organization or cause but not providing

financial support, such as the Benevolent Protective Order

of Elks or the Parrothead Club, 47 Okla. Stat. §§ 1135.3(16)

and (25)) is distributed widely to a variety of municipalities,

school districts, and the like, that have no relationship

whatsoever to the message on the license plate at issue.

Current definitions of “tax” lead us in the same direction.

Black’s Law Dictionary defines “tax” as a “monetary charge

imposed by the government on persons, entities, transactions

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or property to yield public revenue. Most broadly, the term

embraces all governmental impositions on the person,

property, privileges, occupations, and enjoyments of the

people, and includes duties, imposts, and excises.” Black’s

Law Dictionary 1496 (8th ed.2004). Oklahoma’s special

license plate regime surely involves monetary charges

imposed by the government on a transaction to yield public

revenue. The Oxford English Dictionary adds that “ ‘[tjax’

is the most inclusive term for these contributions [to the

support of government].... In the U.S., ‘tax’ is more

generally applied in ordinary language to every federal, state,

or local exaction of this kind.” 17 Oxford English Dictionary

677 (2d ed. 1989).

This plain language understanding of the phrase “any

tax under State law” comports with our precedent. In Marcus

v. Kansas, Department of Revenue, 170 F.3d 1305, 1312 (10th

Cir.1999), we held that “[t]he critical inquiry focuses on the

purpose of the assessment and the ultimate use of funds.”

Id. at 1311. Faced in Marcus (as we are here) with an

argument that the assessment at issue amounted to a

regulatory “fee” incident to the State’s police power rather

than a “tax under State law,” we identified several identifying

characteristics of state taxes:

8. See also Erwin Chemerinsky, Federal Jurisdiction 734 (4th

ed. 2003) (“Courts have broadly interpreted the [TIA] as preventing

federal courts from interfering with virtually all forms of state and

local taxes.”); id. at 735 (“[L]ower courts generally have followed a

commonsense approach, finding, for example, that registration fees

... have the primary purpose of raising revenue and thus should be

classified as taxes.”).

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[T]he classic tax sustains the essential flow of

revenue to the government, while the classic fee

is linked to some regulatory scheme. The classic

tax is imposed by a state or municipal legislature,

while the classic fee is imposed by an agency upon

those it regulates. The classic tax is designed to

provide a benefit for the entire community, while

the classic fee is designed to help defray an

agency’s regulatory expenses.

Marcus, 170 F.3d at 1311 (quoting Home Builders Ass’n of

Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1011

(5th Cir. 1998)). So we might say that a “classic tax” includes

an income tax, imposed by the legislature to defray general

State expenses (even though a portion may go to defray the

administration of the income tax collection system), while a

“classic fee” might be an entry charge imposed by a state

park authority to regulate park usage and support only the

upkeep of the park.

Applying the considerations set forth in Marcus, we

cannot help but conclude that they weigh in favor of holding

the specialty license plate assessments to be taxes. First, there

is no question that the genesis of the special license plate

assessment scheme was the Oklahoma Legislature, not some

regulatory body; indeed, the amount of each assessment is

expressly prescribed by statute. Second, critical under Marcus

(as it was to Judge Cooley), the specialty plate licensing

regime seeks not merely to cover its administrative costs but

to raise revenue for a wide array of public purposes. See supra

at 1244-45. Finally, as the district court pointed out, the funds

collected on top of the $8 reimbursement paid to the Tax

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Commission do not purport to “regulate” anyone by

incentivizing or disincentivizing certain forms of conduct

(like, say, controlling the overuse of state parks).

Plaintiffs respond by asking us to look to the facts of

Marcus rather more than to the rule of law it applied. There,

we held that Kansas assessments imposed on drivers for a

decal entitling them to use parking spaces reserved for the

physically disabled constituted a “fee” rather than a “tax

under State law” for purposes of the TIA. We do not disagree

that parking passes and specialty plates sound alike. But the

statutory regimes before us could not be more different.

Kansas chose to charge very little for handicap parking passes

($5.25) and explicitly mandated that the fees imposed by the

Department of Revenue for the placards “shall not exceed

the actual cost of issuance.” Kan. Stat. § 8-1,125(c) (1999).

Thus, we emphasized in Marcus that the Kansas assessment

“is expressly tied to the administrative costs of a specific

regulatory scheme and, therefore, its essential character is

regulatory.” Marcus, 170 F.3d at 1312. Here, by contrast,

the Oklahoma Legislature has created a statutory scheme

whereby the vast bulk of speciality license plates cost their

purchasers approximately two and four times the amount

necessary to defray the costs of issuing the plates and excess

funds are applied to a variety of public purposes. While

Oklahoma and Kansas faced a similar issue in their vehicle

registration regimes, they chose to address that issue in

radically different ways, ways the plain language of the TIA

and our precedent in Marcus bind us to find dispositive.

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C

Even were we to look beyond the plain language and

our controlling precedent in interpreting “taxes under State

law,” we find other indicia pointing us in the direction of

recognizing the Oklahoma assessments as taxes.

In recognition of the breadth of the plain meaning of the

term Congress employed, the Supreme Court has expressly

instructed that the TIA is to be read as a “ ‘broad jurisdictional

barrier’ ” and is “first and foremost a vehicle ‘to limit

dramatically federal district court jurisdiction.’ ” Arkansas

v. Farm Credit Servs. of Centr. Ark., 520 U.S. 821, 825, 826,

117 S.Ct. 1776, 138 L.Ed.2d 34 (1997) (quoting Moe v.

Confederated Salish and Kootenai of Flathead Reservation,

425 U.S. 463, 470, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976),

and California v. Grace Brethren Church, 457 U.S. 393, 408-

09, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982)). Thus, the Supreme

Court has gone so far as to hold that the *1247 TIA deprived

it of jurisdiction even in cases where the defendant State

argued in favor of federal court review. See Grace Brethren

Church, 457 U.S. at 417 n. 38, 102 S.Ct. 2498. Given the

Court’s direction, it would be especially incongruous for us

to defy the plain meaning of the term “tax” and our precedent

in Marcus to assert federal jurisdiction here.

The Supreme Court has also explained that the TIA

serves an important role in the smooth operation of our

federal system. “The federal balance is well served,” the

Court has written, “when the several States define and

elaborate their own laws through their own courts and

administrative processes and without undue interference from

20a

Appendix A

the Federal Judiciary. The States’ interest in the integrity of

their own processes is of particular moment respecting

questions of state taxation. In our constitutional system, . . .

[t]he power to tax is basic to the power of the State to exist

{and the] .. . [e]nactment of the Tax Injunction Act of 1937

reflects a congressional concern to confine federal court

intervention in state government.” Farm Credit Servs. of

Cent. Ark., 520 U.S. at 826, 117 S.Ct. 1776 (internal citation

and quotation marks omitted). To enjoin Oklahoma’s entire

specialty plate regime (plaintiffs’ preferred remedy) or even

to enjoin a portion of it (plaintiffs’ alternative remedy), would

deny Oklahoma the use of significant funds: the law

generated approximately $605,000 from the purchase of

33,000 special license plates issued between August 1, 2002,

and July 31, 2003, alone. (Am.Compl.{ 126.) Doing so would

further operate to deny these funds to and thus disrupt a

variety of state initiatives, ranging from education to

environmental to adoption programs, which no party disputes

serve legitimate and important state interests. Simply put,

the relief sought here would implicate exactly the sort of

federalism problems the TIA was designed to ameliorate.

The fact that the term “tax” is modified by the phrase

“under State law” also counsels in favor of holding the TIA

applicable. Of course, we have held that how a state labels

an assessment does not resolve the question whether or not

it is a tax (a question Oklahoma has not asked us to revisit).

Marcus, 170 F.3d at 1311. But that does not mean that the

phrase “under State law” is surplusage either; to the contrary,

Congress is presumed to have added these words for some

purpose. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct.

441, 151 L.Ed.2d 339 (2001) (“It is a cardinal principle of

2la

Appendix A

statutory construction that a statute ought, upon the whole,

to be so construed that, if it can be prevented, no clause,

sentence, or word shall be superfluous, void, or

insignificant.” (internal quotation marks omitted)). And, in

fact, it has long been understood that taxes under State law

can include many assessments that may not be taxes for

purposes of federallaw.

Specifically, while the Constitution gave Congress the

“Power to lay and collect Taxes,” U.S. Const. art. I, § 8, this

power is limited in several ways. It has been debated, for

example, whether the power to tax afforded by Article I can

be delegated by Congress to administrative agencies. See,

e.g., National Cable Television Ass’n, Inc. v. United States,

415 US. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). Also,

taxes must be “uniform” under Section 8 of Article I and,

thus, have to apply “ ‘with the same force and effect in every

place where the subject of it is found.’ ” Fernandez v. Wiener,

326 U.S. 340, 359, 66 S.Ct. 178, 90 L.Ed. 116 (1945) (quoting

Head Money Cases (Edye v. Robertson), 112 U.S. 580, 594,

5 S.Ct. 247, 28 L.Ed. 798 (1884)). Further, Article I, § 9

forbids Congress from leveling direct or capitation taxes

except in proportion to the census or enumeration

commanded by the Constitution.” Aware and perhaps because

of these limits, the Supreme Court has come to deem certain

assessments as incidents of congressional authority arising

from sources other than the (limited) taxing power discussed

in Article I. Thus, for example, in National Cable Television

9. The Sixteenth Amendment, of course, allows for the

imposition of taxes on income (though not other items) without regard

to apportionment among the States or to any census or enumeration.

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Appendix A

Association, the Court faced a statute that allowed the Federal

Communications Commission to prescribe, inter alia, a “fee,

charge, or price, if any,” in order to make the agency work

self-sustaining. 415 U.S. at 337, 94 S.Ct. 1146 (quoting 31

U.S.C. § 483a). Mindful of the canon of constitutional

avoidance and anxious to “avoid constitutional problems”

that it perceived might exist if the statute were read to be an

(arguably impermissible) delegation of Congress’s taxing

power to an administration agency, the Court held that the

“fee” was not a “tax” for Article I purposes because it sought

only to cover the costs of an associated administrative

regulation rather than aid in revenue raising. /d. at 340-41,

94 S.Ct. 1146. Similarly, in the Head Money Cases, the Court

faced an assessment authorized by Congress on vessels

bringing passengers from foreign ports. 112 U.S. at 594-95,

5 S.Ct. 247. The plaintiffs argued, among other things, that

the law ran afoul of the constitutional requirement that all

taxes be applied “uniformly” because it was directed only to

persons entering the country by ship, as opposed to by land

or by rail. Jd. at 594, 5 S.Ct. 247. To avoid such potential

constitutional difficulties, the Court held that the charge did

not arise from the taxing power of Article I, § 8 but instead

was a “mere incident” of Congress’s separate constitutional

power to regulate commerce-what the Court described as

“that brancii of foreign commerce which is involved in

immigration.” /d. at 595, 5 S.Ct. 247; see also U.S. Const.

art. I, § 8, cl. 3.

While the Supreme Court has limited what qualifies as

an incident of the taxing power for constitutional purposes,

it has recognized that its rulings do not necessarily resolve

(or even implicate) the question what is a tax for other

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Appendix A

purposes, such as “under State law.” As the Court put it in

the Head Money Cases, sums demanded by the government

may not be authorized pursuant to the “taxing power” of the

Constitution but may still be properly deemed taxes in “a

loose and more extended sense than was used in the

[CJonstitution.” Jd. at 596, 5 S.Ct. 247.

Indeed, in our system of government, States have powers

reserved to them that extend well beyond the powers of the

national government. See U.S. Const. amend. X. These

powers include an independent and plenary taxing authority

“in the most absolute and unqualified sense.” The Federalist

No. 32, at 199 (Alexander Hamilton) (Carl Van Doren ed.,

1979). As exemplified by the dictionary definitions, the

plenary authority to tax under state law has historically

included a very wide array of extractions of property from

private persons by a sovereign for its use that may or may

not be incidents of the rather more narrow taxing authority

granted in Article I.'°

10. It bears mention that our holding is in harmony with that of

the Fifth Circuit. In addressing a challenge under the TIA to a

specialty license plate scheme in Louisiana, the Fifth Circuit held

that the scheme involved “taxes under State law” because the funds

collected from the program did not purport to “ ‘regulate’ ” anything

and “[{a}] dominant feature of the program, evidenced in over half of

the provisions authorizing specialty license plates, is to raise

revenue.” Henderson v. Stalder, 407 F.3d 351, 358 (Sth Cir.2005)

(Jones, J.). Given that Congress’s purpose in passing the TIA was to

“prevent federal courts from interfering with challenges to state and

local revenue-raising measures,” the Fifth Circuit was “unwilling to

mischaracterize the Louisiana legislature’s appropriations measures

as ‘fees’ in order to achieve federal jurisdiction.” /d. at 358-59.

“sé

24a

Appendix A

D

Seeking to avoid the conclusion that the TIA bars their

claims, Motorists advance two additional arguments that

require close attention.

1. Motorists contest the application of the TIA on the

ground that they are not seeking to challenge an assessment

imposed on them, but rather assessments imposed on and

paid by other persons or entities. This, they argue, is an

essential and dispositive distinction under the Supreme

Court’s teaching in Hibbs v. Winn, 542 U.S. 88, 124 S.Ct.

2276, 159 L.Ed.2d 172 (2004). We are constrained to

disagree. Nothing in the language of the TIA indicates that

our jurisdiction to hear challenges to state taxes can be turned

like a spigot, off when brought by taxpayers challenging their

own liabilities and on when brought by third parties

challenging the liabilities of others. Rather, Congress plainly

directed us that we “shall not enjoin . . . any tax under State

law,” without qualification-and nothing in Hibbs commands

a result contrary to the Congress’s express direction.

To be sure, the Supreme Court in Hibbs faced a plaintiff

who sought to chalienge the validity of tax credits provided

to third parties. And in addressing the defendant’s assertion

that the TIA barred the plaintiff's claim, the Court did point

out that TIA cases typically involve challenges brought by

State taxpayers seeking to avoid their own state tax liabilities.

Id. at 107-08, 124 S.Ct. 2276. But the Court did so not to

criticize extant lower court decisions holding that the TIA

25a

Appendix A

bars challenges brought by third parties to State law taxes.'!

Instead, the Court simply sought to underscore how unusual

the case before it was compared with most TIA suits. Indeed,

the Court proceeded to hold that the essential problem with

defendant’s assertion that the TIA barred the suit before it

lay in the fact that the plaintiff there simply did not seek to

enjoin the levy or collection of any tax under State law, as is

typically the case, but instead sought to challenge the

provision of a tax credit aimed at limiting or constraining

State tax revenues. Hibbs, 542 U.S. at 95, 124 S.Ct. 2276.

Simply put, the Court held that giving away a tax credit is a

very different thing than assessing, levying or collecting a

tax.

The Court explained that the “moorings” of the TIA rest

on a “state-revenue-protective” rationale. /d. at 106, 124 S.Ct.

2276. See also id. at 105, 124 S.Ct. 2276 (emphasizing the

protection of “the collection of revenue” as key impulse in

the Court’s jurisprudence); id. at 106, 124 S.Ct. 2276 (noting

that prior decision enforcing the TIA was appropriate because

“(f]ederal-court relief. .. would have operated to reduce the

flow of state tax revenue”). It then proceeded to hold that a

challenge brought to a tax credit does not implicate this core

concern precisely because the entry of the relief sought by

the plaintiffs-the elimination of a tax credit-is not an attack

on a State measure aimed at raising revenue. See id. at 108-

11. See, e.g., Valero Terrestrial Corp. v. Caffrey, 205 F.3d 130,

132 (4th Cir.2000) (TIA barred challenge by landfill owners and

waste transportation companies to a tax imposed on persons disposing

of solid waste at landfills; no distinction made between transport

company upon whom the tax was imposed and landfill owners merely

required to collect tax).

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Appendix A

09, 124 S.Ct. 2276. While the TIA embodies an articulated

concern about protecting State revenue raising efforts, it

simply does not reflect any such concern “about federal

courts’ flogging state and local governments to collect

additional taxes.” Jd. at 109, 124 S.Ct. 2276 (quoting Dunn

v. Carey, 808 F.2d 555, 558 (7th Cir.1986)). Our case, of

course, does not involve the somewhat unusual circumstance

confronted by Hibbs of citizens seeking to eliminate tax

credits and “flog” the State to collect more tax revenues, but

instead falls in the traditional heartland of TIA cases-an effort

expressly aimed at preventing the State from exercising its

sovereign power to collect certain revenues.”

Plaintiffs respond that enjoining Oklahoma from

collecting revenues from the Choose Life, Adoption Creates

Families, and other specialty license plates specifically

authorized by statute might not reduce state revenues. After

all, they say, motorists would remain free to apply for

specialty plates under the legislature’s 2005 “all comers” law

allowing any group with 500 prepaid applications to obtain

a plate of their liking. Plaintiffs’ submission here, however,

is curiously in tension with their response to defendants’

mootness argument. There, plaintiffs contended that the

legislature’s new rule requiring 500 prepaid applications for

new specialty plates is considerably more onerous than the

legislature’s preexisting scheme immediately approving

certain plates for issuance. Here, by contrast, plaintiffs seem

to suggest that an injunction against the old legislative regime

would result in no net revenue loss for the State because a

12. As with our reading of the TIA, our understanding of Hibbs

accords with the views expressed by the Fifth Circuit in its decision

in Henderson. See 407 F.3d at 359.

27a

Appendix A

one-for-one substitution would take place-with motorists

simply migrating from the old to the new licensing regime.

In any event, there is simply nothing in the TIA or Hibbs

suggesting that federal courts can entertain challenges to state

taxes on the basis of predictive judgments that doing so will

not harm state coffers; rather our jurisdiction is precluded

by the plain language of the TIA in all cases seeking to enjoin

the levy or collection of taxes under State law. Were the case

otherwise, judges might be free to become second rate,

supply-side economists, hazarding guesses that enjoining this

or that revenue raising measure would help rather than hurt

overall tax collections. But we are not authorized by Congress

to be in the business of forecasting the likely fiscal effects

of variations on state tax policy; nor do we think ourselves

well equipped to do so.

2. Picking up on an idea recently advanced by the Sixth

Circuit, plaintiffs seek in their reply brief, and in a notice

pursuant to Federal Rule of Appellate Procedure 28(j), to

supplement their “fee rather than tax” and Hibbs-based

arguments with a new, alternative contention. Now they seek

to argue that Oklahoma’s assessment is not a tax (or a fee)

because it is a mere contractual exchange of money for a

commodity. (See Appellant’s Reply Br. at 16-19; Appellant’s

Supp. Auth. (filed April 10, 2006).)"°

13. See, e.g., Appellant's Reply Br. at 16 (“Motorists’ opening

appellate brief explains at length why the amounts paid to purchase

special plates are fees (not taxes) and are thus not implicated by the

TIA. However, even if Motorists are wrong and the amounts are not

fees, it does not follow that the amounts necessarily must be taxes.”).

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Appendix A

It is our general rule, however, that arguments and issues

presented at such a late stage are waived. See Bowdry v.

United Airlines, Inc., 58 F.3d 1483, 1490 (10th Cir. 1995)

(citing, inter alia, Headrick v. Rockwell Int'l Corp., 24 F.3d

1272, 1278-79 (10th Cir. 1994) (White, J.)); accord Herbert

v. Nat’l Academy of Sciences, 974 F.2d 192, 197

(D.C.Cir. 1992) (declining to decide new argument that statute

did not take away jurisdiction from the court, explaining that

“(while courts always must decline to decide cases over

which they have no power, the converse of that rule does not

hold: Article III tribunals are not absclutely bound to render

judgment on every argument over which they obtain

jurisdiction”). As we have explained, the reasons for our rule

are two-fold: “First, to allow an appellant to raise new

arguments at this juncture would be manifestly unfair to the

appellee who, under our rules, has no opportunity for a

written response... . Secondly, it would also be unfair to

the court itself, which, without the benefit of a response from

appellee to an appellant’s late-blooming argument, would

run the risk of an improvident or ill-advised opinion, given

our dependence as an Article III court on the adversarial

process for sharpening the issues for decision.” Headrick,

24 F.3d at 1278 (internal quotation marks omitted).

Of course, our rule against entertaining new arguments

in reply in no way precludes us from supplementing the

contentions of counsel through our own efforts. /d. But

neither does it compel us to undertake such self-directed

research or pursue late and undeveloped arguments, and we

exercise caution in doing so, especially in complex cases

where (as here) highly competent counsel have represented

the parties throughout all stages of the proceedings. Our

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Appendix A

system of justice, after all, is not a self-directed inquisitorial

one; to avoid error, we are dependent on the full development

of issues through the adversarial process and the initial testing

of ideas in trial courts where advocates have an opportunity

to present more than thin briefs and fifteen minute oral

arguments. For these reasons, we need not and do not issue

any holding on plaintiffs’ contractual exchange argument and

leave a final decision on this score for another day.

Just how complex and difficult the new argument

plaintiffs ask us to address, and thus the reason for our

particular reluctance to decide it with finality, is worth

pausing to underscore. Plaintiffs borrow their new

submission from ACLU of Tennessee v. Bredesen, 441 F.3d

370, 373 (6th Cir.2006), cert. denied __ U.S. __, 126 S.Ct.

2972, 165 L.Ed.2d 954 (2006), a recent decision in which

our sister court rejected the notion that a governmental

assessment must either be a tax or a fee-the very dichotomy

plaintiffs have urged courts to adopt throughout the

proceedings in this circuit. (Appellant’s Opening Br. at 23-

28.) Rather, the Sixth Circuit held that Tennessee’s statutory

regime for specialty license plates “creates contractual debts

to pay but imposes no tax. Instead of using its sovereign

power to coerce sales, Tennessee induces willing purchases

as would any ordinary market participant.” /d. at 374."

14. The Sixth Circuit itself relied in substantial part on a recent

dissent from denial of rehearing en banc in the Fifth Circuit.

Henderson v. Stalder, 434 F.3d 352, 353 (Sth Cir.2005) (Davis, J.,

dissenting from denial of rehearing en banc ). And though the Sixth

Circuit overcame the TIA hurdle in its case, the end result there was

no different than it is here-the Sixth Circuit still dismissed plaintiffs’

claims on a motion to dismiss, albeit one directed to the merits of

the constitutional claims. Bredesen, 441 F.3d at 375-80.

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Appendix A

While we do not for a moment doubt that the State can

obtain funds through means other than “taxes” and “fees,”

whether plaintiffs’ assertion that Oklahoma’s issuance of

specialty plates amounts to nothing more than an ordinary

market sales contract is far from clear. The Bredesen court

relied on two particular factors in holding that the license

plate charge was not a tax: (1) a motorist voluntarily pays

the charge, and (2) the State acts as “an ordinary market

participant.” 441 F.3d at 374. The court noted that these two

factors “apply a fortiori to ordinary purchases, like the

purchase of government bonds, or the purchase of a souvenir

at a state park gift store. Such purchase payments can hardly

be termed ‘taxes’ as opposed to ordinary payments on

voluntary contracts.” Id.

But, starting with the latter consideration, we are unaware

of anything approaching an “ordinary market” for specialty

license plates, at least in Oklahoma. Quite unlike the (some

might say over-) active market for souvenir snow globes sold

in state park gift shops, the State brooks no competitors in

15. It seems to us that Bredesen is absolutely right insofar as it

recognized that the tax-fee dichotomy arose in a different context to

answer a different questicom than that posed by the TIA. 441 F.3d at

374. But the dichctomy arese originally not from any circuit court

opinion (as Bredese~ suggests); instead, it seems to have originated

in the Supreme Cowri’s decision in National Cable Television

Association, 415 U.S. 336, 94$.Ct. 1146, 39 L.Ed.2d 370. That case,

of course, had nothing to do with the scope of the term “tax under

State law” in the TIA, but was, as we have discussed, one in which

the Supreme Court strained to place the FCC’s authority to impose

certain assessments outside the constitutional taxing power of Article

1, § 8 in order to avoid what it perceived to be a potentially netthesome

non-delegation problem. See supra at 1247-48.

3la

Appendix A

the supply of specialty license plates. As sovereign, it

exercises exclusive (monopoly) power to issue those items.

See generally 47 Okla. Stat. § 1113; See also Cooley, supra,

at 72 (taxation is “the exercise of the sovereign power to

raise a revenue”). Citizens cannot purchase specialty plates

from some other source, affix them to the rear of their cars,

and motor down the highway-at least without the substantial

risk of incurring something substantially worse than either a

tax or a fee.'® From the pleadings before us, moreover, it

appears that the marginal cost of specialty plates does not

exceed $8 (Am.Compl.J 65),'’ and we know that in the

competitive market for bumper stickers one can find virtually

any message ready to be affixed to the back of a car for

substantially less money still.'* The fact that Oklahoma is

able, under these circumstances, to charge up to $35 for a

16. See 47 Okla. Stat. § 1151(A)(2) (making criminal the

alteration of a license plate); id. § 1151(A)(5) (criminalizing the

operation of a vehicle without a proper license plate or with a plate

for which all taxes have not been paid).

17. “In a perfectly competitive market, retail prices drop

instantly to the marginal cost of the most efficient company.” Verizon

Comms., Inc. v. FCC, 535 U.S. 467, 505, 122 S.Ct. 1646, 152 L.Ed.2d

701 (2002) (citing N. Gregory Mankiw, Principles of Economics 283-

288, 312-313 (1998)).

18. For example, http:// www. stickergiant. com (last visited

March 2, 2007) offers thousands of different bumper stickers, most

for under $3. Stickers with slogans supporting abortion rights, such

as “Pro Child Pro Choice” or “Keep Your Laws Off My Body” can

be purchased for $2.99. Stickers demonstrating the opposite view,

such as “It Is Not a Choice, It Is a Child,” can be purchased for the

same price.

32a

Appendix A

specialty plate bearing a simple message calls into question

whether ordinary market conditions really prevail in the sale

and purchase of specialty license plates.

We are also uncertain whether the fact that the transaction

to purchase specialty plates (as opposed to ordinary plates)

may be “voluntary” dictates that the accompanying

supracompetitive charge is not a tax. On the one hand, the

prevailing definition of tax in existence at the time that the

Tax Injunction Act was enacted contemplated that taxes are

involuntary in nature. See supra at 1244-46. And, in this case,

the extra charge is for a discretionary product that the state

is offering, and it is purely up to the consumer to decide

whether to buy it. The extra words on the specialty plate are

not necessary to exercise the privilege regulated by the state-

i.e., driving. The basic $15 charge covers the privilege of

driving, and the incremental cost may simply be a commercial

price paid by a willing motorist to purchase a license plate

with a slogan that is pleasing to the motorist.

On the other hand, private citizens routinely incur

different levels of compulsory taxation based on the voluntary

choices they make. Thus, for example, in addition to the

normal taxes one pays when purchasing a new car, a higher

“luxury” tax may be incurred by those buyers who choose a

particularly expensive vehicle. See, e.g., 26 U.S.C. § 4001(a)

(1991). Those who incur this luxury tax do so “voluntarily”

in the same sense that those who purchase specialty license

plates bearing some preferred message do so “voluntarily.”

That is, just as the Cadillac owner who chooses a fancier car

foresees that he or she will also have to pay an additional

(compulsory) assessment to the state, a motor vehicle owner

33a

Appendix A

who chooses to display a specialty plate in Oklahoma knows

that he or she must pay the sovereign an additional

(compulsory) sum for that privilege. The fact that the

transaction in either case is voluntarily undertaken with full

foresight of the inevitable (and most certainly not bargained

for or voluntarily chosen) assessment makes the assessment

involved no less a tax. Indeed, though our car-oriented culture

may make it sometimes seem otherwise, the very decision to

purchase and drive a car is itself a voluntary one (no one is

forced to have a car, after all) and it, too, forseeably involves

the payment of a sales tax and a tax for even a basic license

plate. So it is that a very great many taxes we are every day

compelled to pay are a result of our voluntary decisions (the

decision to work harder this year and perhaps risk a higher

income tax bracket, the decision to purchase a home rather

than rent and thus incur real estate taxes, etc.). As the Fifth

Circuit put the point in the process of rejecting the very

analysis advanced by the plaintiffs before us in their reply

brief: “Any party who pays special assessments to the

government does so ‘voluntarily’ in order to engage in

particular activity, whether that activity is homebuilding,

engaging in a regulated industry or obtaining permission to

park in handicapped spots.” Henderson, 407 F.3d at 358. One

thus simply cannot meaningfully distinguish taxes from

“ordinary market transactions” on the basis of a taxpayer’s

intent. Accord id. (holding that it is “not the taxpayer’s

motivation” that distinguishes taxes from other transactions).

34a

Appendix A

E

Having concluded that the Oklahoma specialty license

plate assessments qualify as “taxes under State law,” our

analysis under the TIA remains still unfinished. Before

declining federal jurisdiction, the statute requires us to decide

whether Oklahoma affords a “plain, speedy and efficient”

remedy in its courts for those seeking to challenge its taxes.

28 U.S.C. § 1341. “[I]f the state provides adequate procedural

due process to allow a taxpayer to raise any constitutional

objections, then the state has done all that is required under

the Tax Injunction Act, and as a consequence, the federal

courts are foreclosed from hearing such a tax challenge.”

ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1192 (10th

Cir.1998) (citing California v. Grace Brethren Church, 457

U.S. 393, 412-13, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982)). If

State courts fail to afford such due process, however, the doors

to federal court remain open to ensure an adequate forum

for the dispute.

We have heard no convincing reason to suppose that

Oklahoma fails to provide its citizens sufficient process for

challenging its tax laws; very much to the contrary. In addition

to affording a general right to protest taxes before the Tax

Commission, see generally 68 Okla. Stat. §§ 201, et seq.,

Oklahoma has specifically created “a right of action .. . to

afford a remedy to a taxpayer aggrieved by the provisions of

this article or of any other state tax law.” 68 Okla. Stat.

§ 226(a) (emphasis added). The provision creates “a legal

remedy and a right of action” in any case where a party claims,

inter alia, that “the collection thereof [is] violative of any

Congressional Act or provision of the Federal Constitution.”

35a

Appendix A

Id. § 226(c).'® Motorists provide no reason why they cannot

avail themselves of these provisions, nor do they respond to

the defendants’ argument that this provision ensures them a

speedy, efficient, and fair hearing.

Oklahoma law also specifically provides that parties may

apply for and receive injunctive and declaratory relief as

against unlawful taxes, exactly the sort of relief Motorists

seek here. See 12 Okla. Stat. § 1397 (“An injunction may be

granted to enjoin the enforcement of a void judgment, the

illegal levy of any tax, charge or assessment, or the collection

of any illegal tax, charge or assessment, or any proceeding

to enforce the same; and any number of persons whose

property is affected by a tax or assessment so levied may

unite in the petition filed to obtain such injunction.”)

(emphasis added); see also id. §§ 1651-57. In their brief,

Motorists purport to quote Section 1397 as allowing an

injunction only with respect to “the collection [from them]

of any illegal tax, charge or assessment.” (Appellant’s

Opening Br. at 29.) With their addition of the bracketed

language, Motorists argue that Section 1397 applies only to

taxpayers challenging the collection of taxes levied against

them and not to third party challenges such as the one they

seek to pursue. But the statute simply does not contain the

language the Motorists complain about (and themselves add),

and we have been offered no reason to suppose that Oklahoma

courts will interline the plain words of the statute in this

fashion.

19. That this provision also purports to allow such actions in

federal court as well as state court, see 68 Okla. Stat. § 226(c), does

not affect our jurisdictional analysis, as the Oklahoma Legislature

obviously cannot usurp Congress’s prerogative in expanding or

contracting the scope of a federal court's jurisdiction.

36a

Appendix A

Il

In claims five and six, ORC challenges not the collection

of any tax but the manner in which money is distributed from

the Choose Life Assistance Program. ORC argues in these

remaining claims that the State impermissibly denies it the

Opportunity to receive monies from the Choose Life

Assistance Program based solely on its viewpoint, in

violation of the First and Fourteenth Amendments. More

specifically, the Choose Life Assistance Program directs

monies to groups that counsel “pregnant women who are

committed to placing their children for adoption.” 47 Okla.

Stat. § 1104.6(C)(3). ORC indicates that it would like to offer

such counseling services to women and has applied for

funding to do so, but that its applications have been denied

due to a Statutory restriction preventing the disbursement of

program funds to organizations that are also “associated with

any abortion activities.” Jd. § 1104.6(C)(4); see also

20. We identified a potential ripeness concern with counts five

and six. The operative complaint states merely that “ORC would

like to apply for funding pursuant to 47 Okla. Stat. § 1104.6,” not

that ORC had ever so applied. (Am. Compl. | 27 (emphasis added).)

Had ORC not given DHS the opportunity to consider an application

for disbursement under the Choose Life Assistance Program, we

would have had serious concerns about whether we were being called

upon to determine a case based upon an event which may not happen

at all. What if ORC did apply and DHS, if against all the odds, granted

the application? At oral argument, however, both parties informed

us the ORC has applied for funding from the Choose Life Program

Fund ir fiscal years 2006 and 2007, and that DHS has denied its

applications for the very reason that forms the basis of claims five

and six-that is, because ORC is associated with abortion activities.

(Cont'd)

37a

Appendix A

id. § 1104.6(D). ORC contends that this restriction amounts

to an “unconstitutional condition” on the exercise of its First

Amendment rights. Defendants respond, and the district court

held, that the Eleventh Amendment immunizes them from

such a claim.?!

A

The Eleventh Amendment provides that

[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. By its plain terms, nothing in the

Amendment would appear to bar ORC’s claims as they

(Cont'd)

The parties thereafter supplemented the record before us with copies

of ORC’s applications and DHS’s denials. We are thus satisfied that

ORC’s claims are indeed properly before us.

21. Certain of the defendants argue in a footnote that claims

five and six are also barred by the TIA because the relief sought

with respect to those claims also implicates the State’s tax collection

power. (Tax Commission Defendants’ Resp. Br. at 44 n. 12.) We

will not consider an argument raised in such a perfunctory manner.

See United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir.2002);

accord Hardeman vy. City of Albuquerque, 377 F.3d 1106, 1122 (10th

Cir.2004) (issue raised only in footnote before trial court deemed

waived).

38a

Appendix A

involve purely an intrastate matter-ORC claims to be a non-

profit organization located in Oklahoma (Am.Compl.

qf 20-21), and it seeks to sue only its own sovereign state.

But the plain terms of the Amendment have been much

embroidered. The Supreme Court in Hans v. Louisiana, 134

U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), long ago instructed

inferior federal courts that the Amendment should be read to

preclude even suits by a citizen against its own sovereign

se 665

state; “ ‘inherent in the nature of sovereignty,’ ” Hans held,

*“ ‘is the right not to be amenable to the suit of an individual

without its consent.’ ” /d. at 13, 10 S.Ct. 504 (quoting The

Federalist No. 81, at 547 (Alexander Hamilton) (Carl Van

Doren ed.1979)). Though the Court has sometimes criticized

Hans and more than once considered overruling it,” Hans

remains the law.

The Supreme Court has, however, issued a series of

rulings limiting Hans’s reach. Perhaps the most significant,

and the one most relevant for our purposes, is Ex parte Young,

209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Ex parte

Young, the Court held that the Eleventh Amendment generally

will not operate to bar suits so long as they (i) seek only

22. See, e.g., Pennsylvania v. Union Gas Co., 491 U.S. 1, 31-

35, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (Scalia, J., concurring and

dissenting); Welch v. Tex. Dep’t of Highways & Public Transp., 483

U.S. 468, 495-96, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (Scalia,

J., concurring); id., at 519-21, 107 S.Ct. 2941 (Brennan, J.,

dissenting); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 298-

302, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting).

See also Carlos Manuel Vazquez, What is Eleventh Amendment

Immunity?, 106 Yale L.J. 1683, 1694 n. 42 (1997) (collecting

scholarly criticism of Hans).

39a

Appendix A

declaratory and injunctive relief rather than monetary

damages for alleged violations of federal law, and (ii) are

aimed against state officers acting in their official capacities,

rather than against the State itself. Young’s effort to alleviate

the effect of Hans, however, itself contains some logical

curiosities of its own. Young proceeds on the admitted fiction

that a suit seeking an injunction against a state employee

seeking to do his or her job is (somehow) different in

substance than a suit against the state itself. Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 105, 104 S.Ct.

900, 79 L.Ed.2d 67 (1984) (noting the “fiction of Young”’).”’

It also proceeds on the related assumption that the state

employee is somehow engaging in something other than state

action for purposes of the Eleventh Amendment yet is

engaging in sufficient state action for purposes of the

Fourteenth Amendment to provide us with jurisdiction; after

all, we can enforce aconstitutional right only as against state,

not private, action. See id.; Virginia v. Rives, 100 U.S. 313,

318, 25 L.Ed. 667 (1879). Young further commands us to

afford federal jurisdiction to federal claims even when a

competent state forum stands ready and able to adjudicate

those claims; indeed, the presence or absence of a state forum

simply does not enter into the Young equation.”

23. See also Kenneth C. Davis, Suing the Government by

Falsely Pretending to Sue an Officer, 29 U. Chi. L.Rev. 435 (1962)

(“You may get relief against the sovereign if, but only if, you falsely

pretend that you are not asking for relief against the sovereign. The

judges often will falsely pretend that they are not giving you relief

against the sovereign, even though you know and they know, and

they know that you know, that the relief is against the sovereign.’’).

24 But see Young, 209 USS. at 176, 28 S.Ct. 441 (Harlan.J.,

(Cont'd)

40a

Appendix A

Adding to the rococo quality of Eleventh Amendment

jurisprudence, the Supreme Court has in recent years added

a new gloss on Young’s gloss on Hans’s gloss on the Eleventh

Amendment. First, in 1996, the Court held that Young suits

are not available where Congress “has prescribed a detailed

remedial scheme for the enforcement against a State of a

statutorily created right.” Seminole Tribe of Fla. v. Florida,

517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

That is, “federal courts are not free to imply the wide-ranging,

judge-made remedial doctrine of Ex parte Young when

Congress has seen fit to craft a significantly narrower

statutory remedy.” ANR Pipeline Co. v. Lafaver, 150 F.3d

1178, 1189 (10th Cir.1998). A year later, the Court instructed

that Young may not be rotely applied; instead, lower courts

“must ensure that the doctrine of sovereign immunity remains

meaningful, while also giving recognition to the need to

prevent violations of federal law.” Coeur d’Alene, 521 U.S.

at 269, 117 S.Ct. 2028. The Court added that

[t]o interpret Young to permit a federal-court

action to proceed in every case where prospective

(Cont'd)

dissenting) (criticizing majority for failing to recognize that “[wle

must assume-a decent respect for the states requires us to assume-

that the state courts will enforce every right secured by the

Constitution”); Jdaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,

270-74, 117 S.Ct. 2028, 138 L.Ed.2d 438 (Kennedy, J.) (arguing that

Young has special significance where no state forum available); id.

at 276, 117 S.Ct. 2028 (“It would be error coupled with irony were

we to bypass the Eleventh Amendment, which enacts a scheme

solicitous to the States, on the sole rationale that state courts are

inadequate to enforce and interpret federal rights in every case.”).

4la

Appendix A

declaratory and injunctive relief is sought against

an officer, named in his official capacity, would

be to adhere to an einpty formalism and to

undermine the principle ... that the Eleventh

Amendment represents a real limitation on a

federal court’s federal-question jurisdiction.

Id. at 270, 117 S.Ct. 2028. As the Court put it, the “real

interests served by the Eleventh Amendment are not to be

sacrificed to elementary mechanics of captions and

pleadings.” /d.; see also Alden vy. Maine, 527 U.S. 706, 756-

57, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).

In the suit before us, defendants do not dispute that

claims five and six meet the Ex parte Young formalisms-that

is, those claims seek prospective relief, no damages, and are

directed (at least nominally) against state officials rather than

the State of Oklahoma itself. Instead, defendants urge us to

dismiss this suit on the basis of the new gloss added to Young

by Coeur d’Alene. But this only raises the questions: What

exactly did Coeur d’Alene do to the state of the Supreme

Court’s Ex parte Young jurisprudence?” And what does

Coeur d’Alene mean for this case?

25. As one critic has put it, “The most unsettled aspect of the

newly developing law [regarding the Eleventh Amendment] is the

effect of Coeur d'Alene Tribe.” John H. Clough, Federalism: The

Imprecise Calculus of Dual Sovereignty, 35 J. Marshall L.Rev. |, 4

(2001); see also Laurence H. Tribe, American Constitutional Law

566 (3d ed. 2000) (“The meaning of ... Coeur d’Alene for Ex parte

Young is a matter of great debate among commentators.”) (collecting

articles); Carlos Manuel Vazquez, Night and Day: Coeur d'Alene,

(Cont'd)

42a

Appendix A

Coeur d’Alene involved multiple and fractured opinions.

Justice Kennedy wrote the lead opinion but commanded a

majority with respect only to certain sections. When it came

to the key question how lower courts should change their

analyses under Ex parte Young, Justice Kennedy wrote for

just himself and Chief Justice Rehnquist to suggest a “case-

by-case approach” in which lower courts should “reflect a

sensitivity” to a “broad” range of questions ranging from the

nature and significance of the federal rights at stake, the state

interests implicated by the lawsuit, and the availability of a

state forum. 521 U.S. at 280, 117 S.Ct. 2028. Federalism

and comity interests, Justice Kennedy wrote, should receive

consideration in every case. /d. at 278-280, 117 S.Ct. 2028.

Turning to the specific matter before him, in which the Coeur

d’ Alene Tribe of Idaho sought a declaratory judgment action

to establish its entitlement to exclusive use and occupancy

of submerged lands under Lake Coeur d’Alene, Justice

Kennedy wrote that the lawsuit sought to “divest the State

of its sovereign control over submerged lands, land with a

unique status in the law and infused with a public trust the

State itself is bound to respect.” /d. at 283, 117 S.Ct. 2028.

After balancing the competing federal and state interests at

stake, and acknowledging the ready availability of a state

forum to hear the dispute, Justice Kennedy concluded that

“{t]he dignity and status of its statehood allow[ed] Idaho to

rely on its Eleventh Amendment immunity and to insist upon

(Cont'd)

Breard, and the Unraveling of the Prospective-Retrospective

Distinction in Eleventh Amendment Doctrine, 87 Geo. L.J. 1, 42

(1998) (“Exactly what the Court held [in Coeur d’Alene], and thus

how radically it changed [Eleventh Amendment] doctrine, is a matter

of some dispute.”) (hereinafter “VAzquez”).

43a

Appendix A

responding to these claims in its own courts.” /d. at 287-88,

117 S.Ct. 2028.

Justice O’Connor wrote separately for herself and

Justices Scalia and Thomas to express disagreement with this

“reformulation” of Ex parte Young. See 521 U.S. at 296, 117

S.Ct. 2028. Justice O’ Connor worried that Justice Kennedy’s

approach would replace “a straightforward inquiry” under

Ex parte Young with a “vague balancing test that purports to

account for a ‘broad’ range of unspecified factors.” /d. And,

as with the balancing of federal and state interests, Justice

O’Connor appeared to reject the notion that the availability

(or unavailability) of a state forum should play any role in

our Eleventh Amendment analysis under Young. Id. at 292,

117 S.Ct. 2028; see also supra at note 24. Yet, Justice

O’Connor joined Justice Kennedy in holding that the

plaintiff’s suit should be dismissed despite its seeming

compliance with Ex parte Young’s formalisms. Her precise

reason for doing so, however, is not free from dispute.*®

It appears that Justice O’Connor modified Ex parte Young

Slightly by expanding what constitutes impermissible

retrospective relief. Though the Tribe’s claim was formally

pled as an action for declaratory and injunctive relief, Justice

O’Connor noted that its request for a declaration that the

State did not own the submerged lands at issue was really, in

26. See Vazquez, supra note 25; Eric B. Wolff, Coeur d’ Alene

and Existential Categories for Sovereign Immunity Cases, 86 Cal.

L.Rev. 879, 916 (1998) (discussing Antonin Scalia, Sovereign

Immunity and Nonstatutory Review of Federal Administrative Action:

Some Conclusions from the Public-Lands Ceses, 68 Mich. L.Rev.

867 (1969), and Louis L. Jaffe, Suits Against Government and

Officers: Sovereign Immunity, 77 Harv. L.Rev. 1 (1963)).

44a

Appendix A

substance, tantamount to a request to transfer title over huge

tracts of lands, a form of relief much akin to a (significant)

retroactive monetary judgment and not at all like a run of

the mill Ex parte Young suit seeking to bar the future

implementation of regulations issued by a state regulatory

body. Jd. at 291, 117 S.Ct. 2028.” Thus, Justice O’Connor

seemed to suggest that we must assess whether a claim seeks

relief effectively equivalent to a retrospective judgment

regardless of how it is formally pled or denominated.

B

As the narrower approach commanding the fifth vote,

we have previously acknowledged that Justice O’Connor’s

opinion provides the controlling guidance for lower courts

and sought to apply that approach, as best we understood it,

in ANR Pipeline, 150 F.3d at 1190. There, we wrote that “[i}n

light of Coeur d’Alene Tribe, federal courts must examine

whether the relief being sought against a state official

‘implicates special sovereignty interests.’ If so, we must then

determine whether that requested relief is the ‘functional

equivalent’ to a form of legal relief against the state that

would otherwise be barred by the Eleventh Amendment,”

such as a retrospective money judgment. /d.

After our decision in ANR Pipeline, however, the

Supreme Court in Verizon Maryland v. Public Service

Commission of Maryland, 535 U.S. 635, 122 S.Ct. 1753, 152

27. Ex parte Young, like many suits in which the doctrine it set

forth has been applied, involved a suit against state officers secking

to enjoin enforcement of a utility commission order that allegedly

violated federal law. 209 U.S. at 129, 28 S.Ct. 441.

45a

Appendix A

L.Ed.2d 871 (2002), had occasion to return to this area. There,

the Supreme Court reviewed a Fourth Circuit decision

articulating an approach to sovereign immunity that closely

tracked our approach in ANR Pipeline:

[T]o determine whether Ex parte Young authorizes

this suit against State officials, we must evaluate

the federal interests served by permitting a federal

suit against individual members of the Maryland

Public Service Commission, taking into account

the remedial scheme for enforcement of federal

law that Congress has established in the

Telecommunications Act of 1996. Then, with

those federal interests understood, we must

determine whether the federal suit would unduly

sacrifice the important value of Maryland’s

sovereign immunity.

Bell Atlantic Md. v. MCI Worldcom Inc., 240 F.3d 279, 295

(4th Cir.2001), rev’d by Verizon Md., 535 U.S. at 648, 122

S.Ct. 1753.

The Supreme Court reversed. In doing so, a clear

majority of the Supreme Court followed Justice O’Connor’s

approach in Coeur d’Alene and instructed lower courts

definitively that “[i]n determining whether the doctrine of

Ex parte Young avoids an Ele» -~th Amendment bar to suit,

a court need only conduct a ‘straightforward inquiry into

whether [the] complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as

prospective.’ ” Verizon Md., 535 U.S. at 645, 122 S.Ct. 1753

(quoting Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028

46a

Appendix A

(O’Connor, J., concurring)). Emphasizing the importance of

the adverb “properly” and that formal pleading titles do not

necessarily control, the Court explained that, in the case

before it, “no past liability of the State, or of any of its

commissioners, is at issue. [The lawsuit] does not impose

upon the State a monetary loss resulting from a past breach

of a legal duty on the part of the defendant state officials...

Insofar as the exposure of the State is concerned, the prayer

for declaratory relief adds nothing to the prayer for

injunction.” /d. at 646, 122 S.Ct. 1753 (internal citations and

quotation marks omitted).

The Supreme Court’s formulation of Coeur d’Alene in

Verizon Maryland is thus somewhat different from what we

had understood it to be in ANR Pipeline. In rejecting the

Fourth Circuit’s analysis, the Supreme Court in Verizon

Maryland clarified that the courts of appeals need not (and

should not) linger over the question whether “special” or

other sorts of sovereign interests are at stake before analyzing

the nature of the relief sought. Thus, to the extent that our

decision in ANR Pipeline read Coeur d’Alene as requiring

“federal courts [to] examine whether the relief sought against

a state official ‘implicates special sovereignty interests,’ ”

150 F.3d at 1190, we recognize today that Verizon Maryland

abrogated this step. Instead, the Supreme Court has instructed

that we are to proceed immediately in every case to the

“straightforward [or so one might hope] inquiry” whether

the relief requested is “properly” characterized as prospective

or is indeed the functional equivalent of impermissible

retrospective relief. Verizon Md., 535 U.S. at 645, 122 S.Ct.

1753; see also Republic of Paraguay v. Al. n, 134 F.3d 622,

628-29 (4th Cir.1998) (reading Coeur d’Alene as requiring

47a

Appendix A

lower courts to analyze whether relief sought is the

“ ‘functional equivalent’ ” of retrospective relief

“notwithstanding [the fact that the] claimed violation was

continuing and the relief sought was only prospective in

nature’’).

Following the Supreme Court’s most recent and

definitive guidance in Verizon Maryland, the sole question

for us becomes whether the relief sought by ORC is

prospective, not just in how it is captioned but also in its

substance. The State appears to wish the law were otherwise,

pursuing arguments that track to a significant degree the sort

of case-specific analysis of the state interests at stake that

the Fourth Circuit pursued in Verizon Maryland. But we are

bound by the law as it is, not as one might wish it to be. And

Verizon Maryland has done much to make clear(er) the law

that binds us.

With the dismissal of claims one through four, the only

remaining relief sought by ORC relates to the statutory

provisions prohibiting disbursement to organizations which

engage in abortion-related activities, that is 47 Okla. Stat.

§ 1104.6(C)(4) and (D). Specifically, ORC seeks (i) a

declaration that prohibiting the distribution of monies from

the Choose Life Assistance Program based on abortion-

related speech is unconstitutional; (ii) an injunction to stop

the Defendants from enforcing 47 Okla. Stat. § 1104.6(C)(4)

and (D), which prohibit distribution to such organizations;

and (iii) severance of those subsections from the rest of the

statute. (Am.Compl.{ 166.) By its terms, ORC’s complaint

does not seek a money judgment for any past alleged

infractions of federal law. Neither does it seek to impose

48a

Appendix A

any constraints on the State’s ability to decide which specialty

license plates to allow or disallow. Nor does it seek to dictate

which programs the State may choose (or not choose) to fund

with revenues from its specialty license plate scheme.

Nothing in ORC’s suit calls to mind the sort of literal land

grab effort made by the plaintiffs in Coeur d’Alene with its

consequent significant implications on the state fisc.7®

Viewing the facts in the light most favorable to ORC, we are

unable to conclude that, were ORC to prevail, Oklahoma’s

specialty license plate program would be any less financially

lucrative for the State, or that the State would be inhibited in

any of its funding options, including its decision to collect

and spend revenues in aid of adoption activities through the

Choose Life Assistance Program. Instead, akin to Ex parte

Young and Verizon Maryland, ORC’s injunction claim seeks

to preclude only the future enforcement of one aspect of a

complex regulatory scheme, and its claim for declaratory

relief adds nothing of substance to this request. See Verizon

Md., 535 U.S. at 645, 122 S.Ct. 1753 (“We have approved

injunction suits against state regulatory commissioners

{under Young ].... Indeed, Ex parte Young itself was a suit

against state officials . . . to enjoin enforcement of a railroad

28. Lower courts that have found Coeur d'Alene applicable

have involved just such circumstances. See, e.g., Western Mohegan

Tribe & Nation v. Orange County, 395 F.3d 18 (2d Cir.2004)

(claiming that the State of New York was wrongfully in possession

of 10 counties); Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281 (Sth

Cir.2000) (seeking to eject state officers from piece of real property);

MacDonald v. Vill. of Northport, Mich., 164 F.3d 964 (6th Cir. 1999)

(seeking declaration that right-of-way that provided access to

navigable waterway was the lawful property of plaintiffs).

49a

Appendix A

commission’s order requiring a reduction in rates.”).”? That

is, ORC’s complaint seeks only to prohibit the State in the

future from denying Choose Life Assistance Program funds

to organizations like ORC because they also advocate

abortion. According to ORC, Oklahoma imposes a so-called

“unconstitutional condition” insofar as the State allegedly

provides no way for ORC to receive such funding to support

its adoption counseling services and still exercise its First

Amendment right to speak out about abortion, even using

entirely private funds in entirely distinct programs. To

participate in the State’s Choose Life Assistance Program,

ORC contends it effectively must give up its constitutionally

protected right to advocate for abortion even on its own

proverbial time and using its own (non-governmental)

funds. *°

29. This stands in contrast to the situation we faced in ANR

Pipeline. Had we allowed the suit to go forward in ANR Pipeline, a

federal court would have been in the position of effectively rewriting

a not insignificant portion of Kansas’s property tax code. ANR

Pipeline, 150 F.3d at 1194.

30. As the Supreme Court explained in Rust v. Sullivan, the

problem of unconstitutional conditions arise in cases where “the

Government has placed a condition on the recipient of the subsidy

rather than on the particular program or service, thus effectively

prohibiting the recipient from engaging in the [constitutionally]

protected conduct outside the scope of the [government-]funded

program.” 500 U.S. 173, 197, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)

(emphasis in original). Thus, in one early application of the doctrine,

the Court struck down a California law which required persons to

swear an oath that they did not advocate for the overthrow of the

government of the United States or the State of California in order

(Cont'd)

50a

Appendix A

Of course, had ORC’s complaint gone further—seeking,

for example, to require the State to fund its abortion-related

programs—we would have faced a very different and

considerably more difficult question under Coeur d’Alene

and Verizon Maryland.*' But in this case, even if ORC were

to prevail and obtain the relief sought in its amended

complaint, the State would remain free to promote adoption

and ensure that none of its monies go to abortion-related

activities or any other activities of which it disapproves.”

Indeed, ORC agreed at oral argument that the Supreme

Court’s ruling in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct.

1759, 114 L.Ed.2d 233 (1991), allows the State to make a

(Cont'd)

to receive a tax exemption. Speiser v. Randall, 357 U.S. 513, 516,

78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). In doing so, the Court held

that “[t]o deny an exemption to claimants who engage in certain

forms of speech is in effect to penalize them for such speech,” which

“necessarily will have the effect of coercing the claimants to refrain

from the proscribed speech.” /d. at 518, 519, 78 S.Ct. 1332. The

Court added that “when the constitutional right to speak is sought to

be deterred by a State’s general taxing program due process demands

that the speech be unencumbered until the State comes forward with

sufficient proof to justify its inhibition.” /d. at 528-29, 78 S.Ct. 1332.

31. See, e.g., Barton v. Summers, 293 F.3d 944, 951 (6th

Cir.2002) (holding that an attempt to force the State to make a

particular allocation of Medicaid funds despite congressional

authorization allowing the State considerable discretion amounted

to an effort to obtain money damages impermissible under Coeur

d'Alene ).

32. Given the 2005 amendments, however, it now appears that

Oklahoma law might permit a license plate expressing support for-

and even funding-abortion-related activities. See supra at 1241.

Sla

Appendix A

choice to support adoption rather than abortion-related

programs.** ORC further acknowledged that it would be

entirely permissible for Oklahoma, consistent with the regime

approved by the Supreme Court in Rust, to require private

organizations (like ORC) that support both adoption and

abortion to create a structurally separate affiliate that does

not engage in abortion activities to receive and account for

governmental funds in order to ensure that public monies

are in no way intermingled with privately raised funds used

for the group’s separate abortion-related activities. Cf. Harris

v. Owens, 264 F.3d 1282, 1293 (10th Cir.2001) (holding that

suit to obtain share of funds from tobacco settlement would

not impermissibly intrude on state’s interest in shaping law-

enforcement remedies where “[t]he state and the tobacco

companies have already determined how much money will

be paid to the state; Harris merely seeks his portion (if any)

of these funds”).**

33. See Rust, 500 U.S. at 198-99, 111 S.Ct. 1759 (upholding

government’s right to issue regulations which required recipients of

grants to engage in abortion-related activity separately from activity

receiving federal funding); see alsa Regan v. Taxation With

Representation of Wash., 461 U.S. 540, 545, 103 S.Ct. 1997, 76

L.Ed.2d 129 (1983) (holding that Congress could exercise its

spending power to prohibit tax-exempt organizations from lobbying

because organizations were free to create separate affiliates which

could receive private funds to support lobbying efforts); accord

United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 123 S.Ct.

2297, 156 L.Ed.2d 221 (2003) (declining to decide unconstitutional

conditions argument but reiterating Rust's teaching that government

may insist that public funds be spent for purposes for which they

were authorized).

34. In Rust, the governmental regulations at issue did “not force

the ... grantee to give up abortion-related speech; they merely

(Cont'd)

52a

Appendix A

Given all this, we are unable to conclude, as defendants

would have us, that the relief ORC seeks represents an

impermissible form of relief under our received Eleventh

Amendment jurisprudence. Of course, at this stage we are

confronted only with a motion to dismiss and thus have taken

plaintiff’s pleadings as true for purposes of our analysis,

drawing all inferences in ORC’s favor. We offer no comment

on whether the ORC will ultimately be able to prove that

Oklahoma’s statutory scheme is constitutionally infirm.

See Verizon Md., 535 U.S. at 646, 122 S.Ct. 1753 (“[T]he

inquiry into whether suit lies under Ex parte Young does not

include an analysis of the merits of the claim.”). And, as

with any other legal defense or immunity, should the facts

developed in discovery take the case in a direction different

from that suggested by the complaint, the trial court remains

free to revisit the applicability of the Eleventh Amendment,

whether at summary judgment or thereafter. That is,

defendants remain free, as discovery progresses, to try to

establish facts suggesting that granting ORC the relief it

requests would operate to reduce the amount of funds flowing

to the state Treasury or otherwise constitute something

functionally equivalent to a retrospective judgment.

Likewise, we offer no comment on whether any other forms

of relief ORC may ultimately seek to add to this suit might

(Cont’d)

require(d] that grantee to keep such activities separate and distinct

from its [government-funded family planning activities]” such that

“the ... grantee [could] continue to perform abortions, provide

abortion-related services, and engage in abortion advocacy; [the

grantee was] simply required to conduct those activities through

programs that are separate and independent from the project that

receives [government] funds.” 500 U.S. at 196, 111 S.Ct. 1759.

53a

Appendix A

or might not be problematic under the Eleventh Amendment.

For our current purposes, we need only conclude, as we do,

that litigation may proceed on the basis of plaintiffs’ amended

complaint. *°

IV

For the reasons explored above, we hold that Oklahoma’s

specialty license plate charges are “taxes under State law”

for the purposes of the TIA and thus affirm the district court’s

dismissal of claims one through four. We also hold that the

prospective relief sought in this case falls within the scope

of Ex parte Young and is not barred by the Eleventh

Amendment; we therefore reverse the district court’s

dismissal of claims five and six and remand those claims for

further proceedings consistent with this opinion. So ordered.

35. On November 12, 2004, the district court entered a

Temporary Re’ ‘,aining Order prohibiting the State from disbursing

any monies from the Choose Life Assistance Fund until July 1, 2005.

On July 6, 2005, the parties entered into an Agreed Order pursuant

to which the State promised to retain ORC’s pro rata share of the

funds available for distribution from the Choose Life Assistance Fund

until the case has been decided on the merits. We need not decide-

and express no views on—whether any disbursement of these funds

would be the functional equivalent to an impermissible retroactive

money judgment because no party to this appeal challenged the

Agreed Order. All that is now before us is a motion to dismiss the

complaint based on the allegations contained therein.

54a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

DATED AUGUST 16, 2005

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

Case No. 04-CV-0028-CVE-PJC

HAROLD E. HILL, et al.,

Plaintiffs,

v.

THOMAS E. KEMP, et al.,

Defendants.

OPINION AND ORDER

Now before the Court are the motions to dismiss

(Dkt. ## 46, 47, 50, and 51) filed by defendants Howard H.

Hendrick, in his official capacity as Director of the Oklahoma

Department of Human Services; Thomas E. Kemp, Jerry

Johnson, and Connie Irby, in their official capacities as

Chairman, Vice-Chairman, and Secretary-Member of the

Oklahoma Tax Commission; Brad Henry, in his official

capacity as Governor of the State of Oklahoma; W. Drew

Edmondson, in his official capacity as Attorney General of

the State of Oklahoma; and Scott Meacham, in his official

55a

Appendix B

capacity as Treasurer of and for the State of Oklahoma,' as to

all claims brought against them by plaintiffs in this case.

Plaintiffs Harold E. Hill, Margaret R. and William F. McCright,

John J. McQueen, Rita J. Moskowitz, and Barbara Santee

(collectively, “Motorist Plaintiffs”), and Oklahoma Religious

Coalition for Reproductive Choice Education Fund, Inc.

(“ORC”) challenge the constitutionality of certain Oklahoma

‘Statutes relating to the issuance of specialty license plates and

seek declaratory and injunctive relief under 42 U.S.C. § 1983

for violations of the First and Fourteenth Amendments to the

United States Constitution. Specifically, the Motorist Plaintiffs

complain that certain statutes authorizing the issuance of

specialty license plates, including those displaying the phrases

“Choose Life” or “Adoption Creates Families,” infringe their

exercise of free speech and the protections accorded by the Due

Process and Equal Protection Clauses of the Constitution. ORC

further challenges the statutory eligibility requirements for

programs desiring to receive funds under the Choose Life

Assistance Program which is funded through the specialty plates

program.

I.

Through Okla Stat. tit. 47, §§ 1135.1-1135.6, the

Oklahoma legislature has created a process by which the

Oklahoma Tax Commission (“OTC”) may issue Oklahoma

1. Robert Butkin held the office of Treasurer at the time the

lawsuit was filed and thus was named in the original Complaint (Dkt.

#1) and First Amended Complaint (Dkt. #45). The office of Treasurer

of and for the State of Oklahoma is now held by Scott Meacham.

Because defendant Butkin was sued in his official capacity, Scott

Meacham is automatically substituted as party defendant pursuant

to Fed. R. Civ. P. 25(d)(1). The caption shall be amended accordingly.

56a

Appendix B

motorists, for an additional payment, any of nearly 100

specialty license plates, including the two at issue here. New

specialty license plates — not already authorized by the

legislature — may be created ultimately only by legislative

amendment.

Of the additional $35 amount paid for the Choose

Life plates, eight dollars is deposited into the OTC

Reimbursement Fund, $20 is deposited into the Choose Life

Assistance Program Revolving Fund (“Choose Life Fund”),

and the remaining seven dollars is apportioned among the

various school districts, the state’s General Revenue Fund,

the State Transportation Fund, the counties, cities, and

incorporated towns of the State of Oklahoma, and the Law

Enforcement Retirement Fund pursuant to Okla. Stat. tit. 47,

§ 1104. Okla. Stat. tit. 47, § 1135.5(C). The legislature has

also established the eligibility criteria for receiving monies

from the Choose Life Fund. Okla Stat. tit. 47, § 1104.6. Of

the additional $35 amount paid by Oklahoma motorists for

the Adoption Creates Families plate, eight dollars is deposited

into the OTC Reimbursement Fund, $25 is deposited into a

revolving fund to be used by the Department of Human

Services “for the implementation of the Investing in Stronger

Oklahoma Families Act specifically for created families,”

Okla Stat. tit. 47, § 1135.5(B)(22), and the remaining two

dollars is apportioned pursuant to Okla. Stat. tit. 47, § 1104.

Okla. Stat. tit. 47, § 1135.5(C).

Motorist Plaintiffs allege that they each own automobiles

validly registered in the State of Oklahoma, and each seeks

a specialty license plate expressing support for choice in

family planning. Each went to a local tag agency within the

57a

Appendix B

Northern District of Oklahoma and specifically asked to

purchase a special license plate expressing support for choice

in family planning, but were notified that no such plate exists

in Oklahoma. Motorist Plaintiffs assert that over two years

ago, the Oklahoma Reproductive Health Coalition, of which

plaintiffs Santee and ORC were members, sought passage

of an amendment which would have authorized the issuance

of such a plate. They further assert that the bill containing

this amendment was referred to the Senate Finance

Committee on February 4, 2003, but failed to be passed

during the first or second regular session after its

introduction, and therefore officially died on May 28, 2004.

ORC, which is located in Tulsa, Oklahoma, is a statewide

coalition of religious organizations. Its mission is to support

a woman’s freedom of reproductive choice regardless of her

income, culture, race, class, or ethnic origin. It provides

various services to women, including both adoption and

abortion counseling. Its abortion counseling activities

disqualify it for receipt of funds from the Choose Life Fund

under Okla. Stat. tit. 47, $§ 1104.6(C)(4) and (D). It alleges

that it has applied for such funds but been disqualified on

this ground.

Plaintiffs seek a declaration that the statutory scheme

underlying the specialty license plates at issue in this case is

unconstitutional, and an injunction against any further

implementation or enforcement of the entire specialty license

plate program. In the alternative, Motorist Plaintiffs seek a

declaration that the practice of allowing a specialty plate

expressing one view but not another is unconstitutional, and

an injunction against the continued enforcement of the

58a

Appendix B

legislation implementing the Choose Life and Adoptions

Create Families plates specifically. ORC seeks a declaration

that conditioning the receipt of government funds on

abstention from certain speech is unconstitutional, and an

injunction against the enforcement of Okla. Stat. tit. 47,

§§ 1104.6(C)(4) and (D).

Defendants seek to have the claims against them

dismissed on the grounds, inter alia, that the Tax Injunction

Act, 28 U.S.C. § 1341 (“TIA”), deprives the federal courts

of jurisdiction over these claims and that they have immunity

from suit under the Eleventh Amendment.’

Il.

The Court must first address any challenge to its

jurisdiction. Defendants Kemp, Johnson, and Irby contend

that the TIA bars the suit in its entirety. The TIA prohibits

federal courts from “enjoining, suspending, or restraining

the assessment, levy or collection of any tax under State law

where a plain, speedy, and efficient remedy may be had in

the courts of such state.”* 28 U.S.C. § 1341. Plaintiffs in

2. Defendants have also raised questions of venue, standing,

and ripeness, but because the Court lacks jurisdiction, it does not

reach those issues. ORC does not challenge any funding restrictions

associated with the Adoption Creates Families plate.

3. The TIA would not serve to deprive federal courts of

jurisdiction if Hibbs v. Winn, 542 U.S. 2288 (2004), can be read to

encompass a suit such as this, where the requested relief would

diminish the flow of state revenues. In Hibbs, plaintiffs were

attacking a tax credit so that the impact of their winning the suit

(Cont'd)

59a

Appendix B

this case have asked the Court to enjoin the collection of

certain assessments prescribed by state law related to

specialty license plates, as well as to enjoin the enforcement

of certain laws disbursing the funds so collected. Although

the TIA is not a bar to jurisdiction over the claims related to

disbursement, it may be a bar to jurisdiction over any

challenge to the collection of the assessments. Accordingly

the Court must first determine whether the extra amounts

charged for specialty plates constitute taxes, for the purposes

of the statute, or whether they are merely regulatory fees.

A.

Whether a state assessment is a tax or a regulatory fee,

for the purposes of the TIA, is a question of federal law.

Marcus v. Kansas, Department of Revenue, 170 F.3d 1305,

i311 (10th Cir. 1999). The label given by a state is not

dispositive of the issue of whether an assessment or other

charge is a tax for the purposes of the Act. /d. “The critical

inquiry focuses on the purpose of the assessment and the

ultimate use of the funds.” Jd. The Tenth Circuit has adopted

(Cont'd)

would have been to return money to the state treasury rather than to

take it away. The Court found the TIA did not bar federal court

jurisdiction. Id. The Hibbs exception to the TIA applies only where

(1) a third party (not a tax payer) files suit, and (2) the suit’s successes

will enrich, not deplete, the government entity’s coffers. /d. at 2288-

90; see also Henderson v. Stalder, 407 F.3d 351, 359 (Sth Cir. 2005).

Therefore, although Motorist Plaintiffs’ claims meet the first prong

for this exception, an injunction against the license plate program’s

operation would reduce state revenues and thus fails to meet the

second prong.

60a

Appendix B

the distinction between taxes and fees laid out by the Fifth

Circuit:

The classic tax sustains the essential flow of

revenue to the government, while the classic fee

is linked to some regulatory scheme. The classic

tax is imposed by a state or municipal legislature,

while the classic fee is imposed by an agency upon

those it regulates. The classic tax is designed to

provide a benefit for the entire community, while

the classic fee is designed to raise money to help

defray an agency’s regulatory expenses.

Marcus, 170 F.3d at 1311 (quoting Home Builders Ass’n of

Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1011

(Sth Cir. 1998)); see also Henderson, 407 F.3d at 356. The

Fourth Circuit has further clarified that “[a] tax is generally

a revenue-raising measure, imposed by a legislative body,

that allocates revenue ‘to a general fund, and [is] spent for

the benefit of the entire community,’ [while a] user fee . . . is

a ‘payment[ ] given in return for a government provided

benefit’ and is tied in some fashion.to the payor’s use of the

service.” Marcus, 170 F.3d at 1311 (quoting Folio v. City of

Clarksburg, W. Va., 134 F.3d 1211, 1217 (4th Cir. 1998));

see also Neinast v. Texas, 217 F.3d 275, 278 (Sth Cir. 2000)

(characterizing fees as charges imposed “(1) by an agency,

not the legislature; (2) upon those it regulates, not the

community as a whole; and (3) for the purpose of defraying

regulatory costs, not simply for general revenue-raising

purposes’’).

6ia

Appendix B

Here, first, although the fees for Oklahoma specialty

plates are collected by the OTC, they are set directly by the

legislature. Second, although the extra assessments for

specialty license plates are paid only by a subset of license

plate purchasers as would support the argument that the

charges are imposed “only upon those [the scheme] regulates”

and therefore constitute fees, all but eight dollars of each

$35 assessment is used to benefit the community as a whole.

That $27 of each $35 assessment is completely unrelated to

the administration of motor vehicle licensing and registration

law underscores the revenue raising purpose of the statutory

scheme. The argument that revenue from the specialty plate

assessments does not serve the general community welfare

because it is earmarked for specially eligible recipient

organizations is unpersuasive because the appropriate focus

is not upon where the funds are eventually deposited, but

upon the purpose of the assessment and upon the eventual

use to which the funds are put. The Oklahoma legislature

designated that the specialty license plate assessments (above

the $8 handling charge) be used for a wide range of purposes,

including education, wildlife conservation, and state, city,

and county road and highway maintenance, as well as, in the

case of these two particular plates, adoption support. None

of these purposes is regulatory as to the purchasers of

specialty plates, and although plaintiffs’ view of the public

benefit served by these expenditures might differ from that

of the Oklahoma legislature, it does not transform the extra

assessments into fees.

Plaintiffs cite Marcus for the proposition that “special

license plate fees did not constitute a tax for the purposes of

the Tax Injunction Act.” Plaintiffs’ Response (Dkt. # 56) at

62a

Appendix B

14. However, although the Tenth Circuit in Marcus ultimately

found the extra assessment for disabled parking placards to

be a regulatory fee rather than a tax, the purpose and ultimate

use of that assessment is easily distinguished from the

purpose and use of the extra assessments in this matter. The

Kansas statutory scheme under consideration in Marcus

expressly provided that the assessment be used primarily to

cover the administration costs of the motor vehicle

registration laws. /d. at 1311. Here, of the additional $35

assessment at issue in the case of the Choose Life plate, only

$8 is being used to pay expenses incidental to administering

motor vehicle laws. The majority ($20) is a legislatively

designated amount, contributed to a legislatively established

fund created to assist organizations that provide services to

pregnant women committed to placing their children for

adoption. Okla. Stat. tit. 47, §§ 1135.5(B)(23) and 1135.5(C).

The legislature even established the eligibility criteria for

receiving monies from the Choose Life Fund. Okla Stat. tit

47, § 1104.6. The remainder goes into legislatively

established general funds, clearly unrelated to the

administration of motor vehicle registration laws.

Similarly, the majority of the additional amount paid by

Oklahoma motorists for the Adoption Creates Families plate

is required, by statute, to be deposited into a revolving fund

to be used by the Department of Human Services “for the

implementation of the Investing in Stronger Oklahoma

Families Act specifically for created families.” Okla Stat.

tit. 47, § 1136.81.

Even though eight dollars of each $35 extra assessment

is apportioned to the OTC for the administration of motor

63a

Appendix B

vehicle registration laws, and is therefore regulatory in nature,

the vast majority of each assessment goes either to a specially-

legislated fund unrelated to motor vehicle registration or is

distributed among legislatively established general funds

unrelated to motor vehicle laws. Accordingly, the Court finds

that the amounts collected for the specialty plates in this case

are taxes rather than regulatory fees.

B.

Because the Court has found the assessments at issue to

constitute taxes rather than regulatory fees, it must now turn

to the question of whether a “plain, speedy and efficient

remedy may be had” in Oklahoma courts. 28 U.S.C. § 1341.

“The Supreme Court has specifically held that the words

‘plain, speedy and efficient remedy’ are to be given a purely

procedural interpretation. A state remedy is adequate if it

meets ‘certain minimal procedural criteria,’ which include

an opportunity to raise the desired legal objections with the

eventual possibility of Supreme Court review of that claim.”

Brooks v. Nance, 801 F.2d 1237, 1240 (10th Cir. 1986) (citing

Carrier Corp. v. Perez, 677 F.2d 162, 165-66 (1st Cir. 1982)

(quoting Roswell v. LaSalle National Bank, 450 U.S. 503,

514 (1981) (upholding state court refund procedure because

it “provides the taxpayer with a ‘full hearing and judicial

determination’ at which she may raise any and all

constitutional objections to the tax’’)).

The Tenth Circuit has held that, for purposes of section

1341, Oklahoma provides an adequate remedy to challenge

the lawfulness of its taxing policies and practices. Brooks,

801 F.2d at 1240 (citing Cities Service Gas Co. v. Oklahoma

64a

Appendix B

Tax Commission, 656 F.2d 584, 587-88 (10th Cir. 1981), and

Bunte Candies, Inc. v. Cartwright, 508 F. Supp. 229, 236

(W.D. Okla.1981)). Taxpayers may apply for a hearing before

the OTC to challenge any incorrect assessment of taxes. Okla.

Stat. tit. 68, § 207(c). Decisions of the OTC may be appealed

directly to the Supreme Court of Oklahoma. Okla. Stat. tit

68, § 225(A). Alternatively, a taxpayer may pay the disputed

tax and institute an action in any state court having

jurisdiction over the parties and the subject matter. Okla.

Stat. tit. 68, § 226. Taxpayers also have the option of applying

for injunctive and declaratory relief in the Oklahoma state

courts. Okla. Stat. tit. 12, §§ 1397, 1651-1657. Moreover,

federal civil rights claims may be brought in the state court

system. See, e.g., Willbourn v. City of Tulsa, 721 P.2d 803,

805 (Okla. 1986) (section 1983 available in state court even

though state remedy time-barred). For these reasons, the

Court finds that Motorist Plaintiffs have a plain, speedy, and

efficient remedy in the state courts similar to that sought here.

Because the assessments at issue are taxes, and a plain,

speedy, and efficient remedy may be had in Oklahoma courts

for any rights violation caused by the imposition of such

taxes, the TIA bars this Court’s jurisdiction over any claims

related to the portion of the statutory scheme that authorizes

the issuance of the specialty plates. This jurisdictional bar

applies with respect to all plaintiffs. For these reasons, the

first, second, third, and fourth claims for relief of plaintiffs’

First Amended Complaint (Dkt. # 45) must be dismissed.

Because the fifth and sixth claims for relief involve the

disbursement of funds rather than the collection of funds,

the Court finds that the TIA does not bar the Court’s

jurisdiction as to them.

65a

Appendix B

Il.

As to the remaining claims, defendants also argue that

they have immunity from suit under the Eleventh

Amendment. The Eleventh Amendment provides:

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

United States by Citizens of another State, or by

Citizens or subjects of any Foreign State.

The United States Supreme Court has interpreted the

Eleventh Amendment to apply to federal question suits

against a state brought by its own citizens. Idaho v. Coeur

d’Alene Tribe, 521 U.S. 261, 267-68 (1997). There are

exceptions to Eleventh Amendment immunity, but plaintiffs

rely instead on the doctrine set forth in Ex parte Young, 209

U.S. 123 (1908). “Although citizens may not generally sue

states in federal court under the Eleventh Amendment, the

Ex parte Young doctrine has carved out an alternative,

permitting citizens to seek prospective equitable relief for

violations of federal law committed by state officials in their

official capacities.” Lewis v. New Mexico Dep’t of Health,

261 F.3d 970, 975 (10th Cir. 2001) (citing Ex parte Young,

209 U.S. at 159-60).

The Tenth Circuit has outlined a four-part test for

application of the Ex parte Young exception: (1) the plaintiff

is suing state officials, with an enforcement connection to

the challenged statute, rather than the state itself; (2) the

plaintiff has alleged a non-frivolous violation of federal law;

66a

Appendix B

(3) the plaintiff seeks prospective equitable relief, rather than

retroactive monetary relief from the state treasury; and

(4) the suit does not implicate “special sovereignty interests.”

Harris v. Owens, 264 F.3d 1282, 1290-94 (10th Cir. 2001);

Elephant Butte Irrigation Dist. of N. M. v. Dep’t of the

Interior, 160 F.3d 602, 609 (10th Cir. 1999). In this case,

plaintiffs have alleged a non-frivolous violation of their

constitutional right to free speech under the First and

Fourteenth Amendments. The Tenth Circuit has clarified that

a court assessing this factor “need only determine whether

Plaintiffs state a non-frivolous, substantial claim for relief

against state officials that does not merely allege a violation

of federal law ‘solely for the purpose of obtaining

jurisdiction,’” and that the inquiry does not go to the merits

of plaintiffs’ claim. Elephant Butte, 160 F.3d at 610 (quoting

Larson v. Domestic & Foreign Commerce Corp., 337 U.S.

682, 690 n.10 (1949)); see also Harris, 264 F.3d at 1289.

Also, plaintiffs seek prospective equitable relief: specifically,

injunctive relief prohibiting defendants from enforcing

certain Oklahoma statutes that they assert unconstitutionally

restrict their speech. Thus, there remain two issues:

(1) whether the state officials named as defendants have a

sufficient enforcement connection with the challenged

statutes to invoke the Ex parte Young exception; and

(2) whether any “special sovereignty interest” is implicated

by ORC’s claims.

A.

Defendants Hendrick, Kemp, Johnson, and Irby do not

dispute a sufficient enforcement connection to the statute

for the purposes of the Ex parte Young exception. The Court

67a

Appendix B

agrees that there is a sufficient connection with respect to

these defendants. Defendants Meacham and Henry each argue

that they are entitled to Eleventh Amendment immunity

because they lack sufficient enforcement connection to the

challenged statutes.* “The fact that the state officer, by

virtue of his office, has some connection with the

enforcement of the act, is the important and material fact,

and whether it arises out of the general law, or is specially

created by the act itself, is not material so long as it exists.”

Ex parte Young, 209 U.S. at 157.

Defendant Henry, as Governor of Oklahoma, is required

by the Oklahoma Constitution to “cause the laws of the State

to be faithfully executed.” Okla. Const. art. 6, § 8. The

connection is “not tangential,” and is sufficient to divest him

of Eleventh Amendment immunity. Reproductive Services v.

Keating, 35 F. Supp. 2d 1332, 1334 (N.D. Okla. 1998) (citing

Allied Artists Pictures Corp. v. Rhodes, 473 F. Supp. 560,

568-69 (S.D. Ohio 1979), aff'd, 679 F.2d 656 (6th Cir.

1982)); see also Harris, 264 F.3d at 1290 (Colorado Governor

not entitled to Eleventh Amendment immunity in connection

with enforcement of Colorado’s Medicaid law). Accordingly,

the Court finds that defendant Henry is not entitled to

Eleventh Amendment immunity on this ground.

4. Plaintiffs do not oppose defendants’ motion to dismiss

W.A. “Drew” Edmondson (Attorney General for the State of

Oklahoma) as a party defendant in this case on the ground of Eleventh

Amendment immunity. See Plaintiffs’ Response (Dkt. # 56), at 2

n.2. Accordingly, ORC’s claims against defendant Edmondson are

dismissed on this ground.

68a

Appendix B

Defendant Meacham has a direct connection to the

Choose Life Fund statute in that the state treasury is required,

by the statute, to create the fund, and to maintain it as a

continuing fund. Okla. Stat. § 1104.6(B). However, as

Treasurer, he has no direct enforcement connection with the

challenged portions of that statute, sections 1104.6(C)(4) and

(D). In fact, if he were to be enjoined from enforcing his

portion of the statute, plaintiff ORC would be unable to claim

the relief it seeks, because there would be no fund from which

it could receive money, even if it were eligible. For this

reason, the Court finds that defendant Meacham is entitled

to Eleventh Amendment immunity on this ground as to

ORC’s claims based on Okla Stat. tit. 47, §§ 1104.6(C)(4)

and 1104.6(D).

Accordingly, the Court finds that, although defendants

Henry, Hendrick, Kemp, Johnson, and Irby have sufficient

enforcement connection to the remaining challenged statutes,

ORC’s claims should be dismissed as to defendant

Meacham, on the ground of Eleventh Amendment immunity

because he lacks a sufficient enforcement connection.

B.

“Because of the important interests of federalism and

State sovereignty implicated by the Ex parte Young doctrine,

the rule has its limits.” ANR Pipeline Company v. LaFaver,

150 F.3d 1178, 1188 (10th Cir.1998). The Ex parte Young

doctrine will not apply where the requested relief could be

said “impermissibly [to] intrude upon the state’s dignity and

Status as a sovereign government.” Harris, 264 F.3d at 1293.

“Forms of prohibited relief have included money paid from

69a

Appendix B

the public treasury, Edelman v. Jordan, 415 U.S. 651, 663

(1974), and a quiet title action, Coeur d'Alene Tribe, 521 U.S.

at 281-82.” Nelson v. Geringer, 295 F.3d 1082, 1098 (10th Cir.

2002). It is uncontroverted that the taxing power is a core

sovereignty interest. See ANR Pipeline, 150 F.3d at 1193

(“Congress has made it clear in no uncertain terms that a state

has a special and fundamental interest in its tax collection

system.”). Similarly, “an attempt to force the allocation of state

funds implicates core sovereign interests.” Barton v. Summers,

293 F.3d 944, 951 (6th Cir. 2002) (dealing with the allocation

of tobacco settlement proceeds).

The Tenth Circuit has recognized an exception to the rule

that a state’s spending power is one of its core sovereign interests

in the case of welfare programs at least partially funded by the

federal government. See Joseph A. ex rel. Corrine Wolfe v.

Ingram, 275 F.3d 1253, 1260-61 (10th Cir. 2002) (“a state's

interest in administering a welfare program at least partially

‘funded by the federal government is not such a core sovereign

interest as to preclude the application of Ex parte Young.)

(quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th

Cir. 1999)). Further, although the Tenth Circuit, in addressing

essentially the same facts as the Sixth Circuit in Barton,

concluded that the Eleventh Amendment did not bar smokers’

suit against the State of Colorado for disposition of tobacco

settlement funds, it emphasized that the funds at issue had not

yet been received by the state and that plaintiffs sought

prospective relief in the form of an injunction preventing deposit

of the funds into the state treasury on the grounds that the

smokers had a legal right to a portion thereof. Harris, 264 F.3d

at 1291-92. There is no federal funding or competing property

right that would so serve to compromise the state’s sovereign

spending power in this case.

70a

Appendix B

Plaintiffs argue that the State’s spending power is not

implicated here because ORC seeks only to strike the

eligibility criteria in section 1104.6 which it perceives to

impose unconstitutional limitations on the receipt of

government funds. Plaintiffs’ Response (Dkt. # 56) at 15.

However, “the Supreme Court's ‘unconstitutional conditions’

jurisprudence has said that the state may exercise its power

to spend in order to discourage protected activity.”

R.J. Reynolds Tobacco Co. v. Bonta, 272 F. Supp. 2d 1085,

1109 (E.D. Cal. 2003) (citing Maher v. Roe, 432 U.S. 464

(1977) (holding that the government “may make a value

judgment favoring childbirth over abortion, and...

implement that judgment by the allocation of public funds’’),

and Rust v. Sullivan, 500 U.S. 173, 192-93 (1991) (sustaining

a prohibition on abortion-related advice by recipients of

federal funds designated for family-planning counseling)).

“A refusal to fund protected activity, without more, cannot

be equated with the imposition of a ‘penalty’ on that activity.

There is a basic difference between direct state interference

with a protected activity and state encouragement of

alternative activity consonant with legislative policy.”

Rust, 500 U.S. at 193. “The government is not denying a

benefit to anyone, but is instead simply insisting that public

funds be spent for the purposes for which they were

authorized.” ° Jd. at 196. Because the requested relief would

5. Plaintiffs, also citing Rust, argue that “unconstitutional

conditions” result from “situations in which the Government has

placed a condition on the recipient of the subsidy rather than on a

particular program, or service. thus effectively prohibiting the

recipient from engaging in the protected conduct outside the scope

of the federally funded program.” /d. at 197. However, the Court in

(Cont'd)

Tila

Appendix B

interfere with the state’s spending power, and because that

power is a special sovereignty interest, Ex parte Young is

not applicable; this suit is barred by the Eleventh

Amendment.®

Vi.

IT IS THEREFORE ORDERED that defendants’

motions to dismiss (Dkt. ## 46, 47, 50, and 51) are hereby

granted The first, second, third, and fourth claims for relief

in plaintiffs’ First Amended Complaint are dismissed as to

all defendants because the Court’s jurisdiction is barred by

the Tax Injunction Act. The fifth and sixth claims for relief

in plaintiffs’ First Amended Complaint are dismissed as to

all defendants because the Court’s jurisdiction is barred by

the Eleventh Amendment.

DATED this 16th day of August, 2005.

(Cont'd)

Rust clarified that, as long as there were no limitation on an

individual’s freedom to participate in such protected activity outside

the bounds of the recipient program, there is no First Amendment

violation. /d.

6. “Once effectively raised, the Eleventh Amendment becomes

a limitation on [the Court’s] subject-matter jurisdiction, and we may

not then assume ‘hypothetical jurisdiction’ to reject a plaintiff's claim

on the merits.” Harris, 264 F.3d 1288. For this reason, the Court

does not reach defendants’ challenges to plaintiffs’ claims on their

merits.

72a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DENYING PETITION FOR REHEARING

FILED APRIL 2, 2007

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 05-5160

(D.C. No. 04-CV-28-CVE-PJC)

HAROLD E. HILL; MARGARET R. McCRIGHT; WILLIAM

F. McCRIGHT; JOHN J. McQUEEN; RITA J. MOSKOWITZ;

BARBARA SANTEE; OKLAHOMA _ RELIGIOUS

COALITION FOR REPRODUCTIVE CHOICE EDUCATION

FUND, INC.,

Plaintiffs - Appellants,

V.

THOMAS E. KEMP, Chairman, Oklahoma Tax Commission;

JERRY JOHNSON, Vice Chairman, Oklahoma Tax

Commission; CONNIE IRBY, Secretary-Member, Oklahoma

Tax Commission; HOWARD H. HENDRICK, Director,

Oklahoma Department of Human Services; BRAD HENRY,

Governor of the State of Oklahoma; W.A. DREW

EDMONDSON; SCOTT MEACHAM, Treasurer, State of

Oklahoma,

Defendants - Appellees.

73a

Appendix C

ORDER

Filed April 2, 2007

Before TYMKOVICH, EBEL, and GORSUCH, Circuit

Judges.

Appellants’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all

of the judges of the court who are in regular active service.

As no member of the panel and no judge in regular active

service on the court requested that the court be polled, that

petition is also denied.

Entered for the Court

CLERK, COURT OF APPEALS

by: s/ [illegible]

Deputy Clerk

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APPENDIX D — TITLE 28 - JUDICIARY AND

JUDICIAL PROCEDURE PART IV - JURISDICTION

AND VENUE — CHAPTER 85. DISTRICT

COURTS; JURISDICTION

Sec. 1341. Taxes by States

The district courts shall not enjoin, suspend or restrain

the assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had in

the courts of such State.

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APPENDIX E — TITLE 47 - MOTOR VEHICLES

CHAPTER 74 - OKLAHOMA VEHICLE LICENSE

AND REGISTRATION ACT SECTIONS -— 1135.1-1135.8

Sec. 1135.1. Special license plates - Political

subdivisions - Tax exemption or nonprofit

- Physical disability — Indian tribe -

Hearing impaired — Antique vehicles —

Honorary consul.

A. The Oklahoma Tax Commission is hereby authorized

to design and issue appropriate official special license plates

to persons as provided by this section.

Special license plates shall not be transferred to any other

person but shall be removed from the vehicle upon transfer

of ownership and retained. The special license plate may then

be used on another vehicle but only after such other vehicle

has been registered for the current year.

Special license plates shall be renewed each year by the Tax

Commission or a motor license agent. The Tax Commission

shall annually notify by mail all persons issued special license

plates. The notice shall contain all necessary information and

shall contain instructions for the renewal procedure upon

presentation to a motor license agent or the Tax Commission.

The license plates shall be issued on a staggered system. The

motor license agent fees shall be paid out of the Oklahoma

Tax Commission Reimbursement Fund.

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Appendix E

B. The special license plates provided by this section

are as follows:

1. Political Subdivision Plates - such plates shall be

designed for any vehicle owned by any political

subdivision of this state having obtained a proper

Oklahoma certificate of title. Such political subdivisions

shall file an annual report with the Tax Commission

stating the agency where such vehicle is located. Such

license plates shall be permanent in nature and designed

in such a manner as to remain with the vehicle for the

duration of the life span of the vehicle or until the title

is transferred to an owner who is not a political

subdivision.

The registration fee shall be Eight Dollars ($8.00) and

shall be in addition to all other registration fees provided

by law, except the registration fees levied by Section 1132

of Title 47 of the Oklahoma Statutes;

2. Tax-Exempt or Nonprofit License Plates - such

plates shall be designed for:

a. any motor bus, manufactured home, or

mobile chapel and power unit owned and operated

by a religious corporation or society of this state

holding a valid exemption from taxation issued

pursuant to Section 501(a) of the Internal Revenue

Code, 26 U.S.C., Section 501(a), and listed as an

exempt organization in Section 501(c)(3) of the

Internal Revenue Code, as amended, 26 U.S.C.,

Section 501(c)(3), and that is used by the

T7a

Appendix E

corporation or society solely for the furtherance of

its religious functions,

b. any vehicle owned and operated only by

nonprofit organizations devoted exclusively to

youth programs including, but not limited to, the

Girl Scouts and Boy Scouts of America,

c. any vehicle, except passenger automobiles,

owned or operated by nonprofit organizations

actually involved in programs for the employment

of the handicapped and used exclusively in the

transportation of goods or materials for such

organization,

d. any vehicle owned and operated by a

nonprofit organization that provides older persons

transportation to and from medical, dental and

religious services and relief from business and

social isolation,

e. any vehicle owned and operated by a private

nonprofit organization that:

(1) warehouses and distributes surplus

foods to other nonprofit agencies and

organizations, and

(2) holds a valid exemption from taxation

issued pursuant to Section 501(c) of the

Internal Revenue Code, as amended,

26 U.S.C., Section 501(c), and listed as an

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Appendix E

exempt organization in Section 501(c)(3) of

the Internal Revenue Code, as amended, and

(3) uses such vehicle exclusively for the

transportation of such surplus foods, or

f. any vehicle which:

(1) is owned and operated by a private,

nonprofit organization which is exempt from

taxation pursuant to the provisions of Section

501(c)(3) of the Internal Revenue Code,

26 U.S.C., Section 501(c)(3), and which is

primarily funded by a fraternal or civic service

organization with at least one hundred local

chapters or clubs, and

(2) is designed and used to provide mobile

health screening services to the general public

at no cost to the recipient, and for which no

reimbursement of any kind is received from

any health insurance provider, health

maintenance organization or governmental

program.

Any person claiming to be eligible for a tax-exempt or

nonprofit license plate under the provisions of this

paragraph must have the name of the tax-exempt or

nonprofit organization prominently displayed upon the

outside of the vehicle, except those vehicles registered

pursuant to the provisions of subparagraph b of this

paragraph, unless such display is prohibited by federal

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Appendix E

or state law or by state agency rules. No vehicle shall be

licensed as a tax-exempt or nonprofit vehicle unless the

vehicle has affixed on each side thereof, in letters not

less than two (2) inches high and two (2) inches wide,

the name of the tax-exempt or nonprofit organization or

the insignia or other symbol of such organization which

shall be of sufficient size, shape and color as to be readily

legible during daylight hours from a distance of fifty (50)

feet while the vehicle is not in motion.

The registration fee shall be Eight Dollars ($8.00) and

shall be in addition to all other registration fees provided

by law, except the registration fees levied by Section 1132

of this title;

3. Physically Disabled License Plates - such plates

shall be designed for persons who are eligible for an

insignia as a physically disabled person under the

provisions of Section 15-112 of this title. It shall

prominently display the international accessibility

symbol, which is a stylized human figure in a wheelchair.

The Tax Commission shall also design physically

disabled license plates for motorcycles owned by persons

who are eligible for an insignia as a physically disabled

person pursuant to the provisions of Section 15-112 of

this title. Upon the death of the physically disabled

person, the special license plate shall be returned to the

Tax Commission. There shall be no fee for such plate in

addition to the rate provided by the Oklahoma Vehicle

License and Registration Act for the registration of the

vehicle. For an additional fee of Ten Dollars ($10.00), a

person eligible for a physically disabled license plate

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Appendix E

shall have the option of purchasing a duplicate physically

disabled special license plate which shall be securely

attached to the front of the vehicle. The original

physically disabled special license plate shall be securely

attached to the rear of the vehicle at all times.

Any person who is eligible for a physically disabled

license plate and whose vehicle has had modifications

because of the physical disability of the owner or of a

family member within the second degree of

consanguinity of the owner, may register the vehicle for

a flat fee of Twenty-five Dollars ($25.00). This fee shall

be in lieu of all other registration fees provided by the

Oklahoma Vehicle License and Registration Act;

4. Indian Tribal License Plates — such plates shall

be designed for any vehicle of a native American Indian

Tribal Association exempted in Sections 201 through 204

of Public Law 97-473 and used by the tribal association

exclusively for the furtherance of its tribal functions.

The registration fee shall be Eight Dollars ($8.00) and

Shall be in addition to all other registration fees provided

by law, except the registration fees levied by Section 1132

of this title;

5. Hearing Impaired License Plates - such plates

shall be designed for persons who are hearing impaired.

Such persons may apply for a hearing-impaired license

plate for each vehicle with a rated carrying capacity of

one (1) ton or less upon the presentment of an application

on a form furnished by the Tax Commission and certified

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Appendix E

by a physician holding a valid license to practice pursuant

to the licensing provisions of Title 59 of the Oklahoma

Statutes, attesting that the person is hearing impaired.

The license plate shall be designed so that such persons

may be readily identified as being hearing impaired.

There shall be no additional fee for the plate, but all other

registration fees provided by the Oklahoma Vehicle

License and Registration Act shall apply;

6. Antique or Classic vehicles — such plates shall

be designed and issued for any vehicle twenty-five (25)

years of age or older, based upon the date of manufacture

therof and which travels on the highways of this state

primarily incidental to historical or exhibition purposes

only.

The registration fee shall be Eight Dollars ($8.00) and

shall be in addition to all other registration fees provided

by law, except the registration fees levied by Section 1132

of this title; and

7. Honorary Consul License Plate — such plates shall

be designed to include the words “Honorary Consul” and

issued to persons who are honorary consuls authorized

by the United States to perform consular duties. Persons

applying for such license plates must show proof of

standing as an honorary consul. The fee for such plate

shall be Eight Dollars ($8.00) and shall be in addition to

all other registration fees required by the Oklahoma

Vehicle License and Registration Act. The owner of the

vehicle that possesses such license plates shall return

the special license plates to the Oklahoma Tax

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Appendix E

Commission if the owner disposes of the vehicle during

the registration year or ceases to be authorized to perform

consular duties.

C. Special license plates provided by this section shall

be designed in such a manner as to identify the use or

ownership of the vehicle. Use of any vehicle possessing a

special license plate provided by this section for any purpose

not specified herein shall be grounds for revocation of the

special license plate and registration certificate.

D. The fees provided by this section shall be deposited

in the Oklahoma Tax Commission Reimbursement Fund.

Section 1135.2. Special license plates - Armed forces -

Medals of honor - Police and sheriff -

Legislators and officials - Volunteers -

Victims and survivors - Amateur radio

operators - Alumni.

A. The Oklahoma Tax Commission is hereby authorized

to design and issue appropriate official special license plates

to persons in recognition of their service or awards as

provided by this section.

Special license plates shall not be transferred to any other

person but shall be removed from the vehicle upon transfer

of ownership and retained. The special license plate may then

be used on another vehicle but only after such other vehicle

has been registered for the current year.

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Appendix E

Special license plates shall be renewed each year by the Tax

Commission or a motor license agent. The Tax Commission

shall annually notify by mail all persons issued special license

plates. The notice shall contain all necessary information and

shall contain instructions for the renewal procedure upon

presentation to a motor license agent or the Tax Commission.

The license plates shall be issued on a staggered system

except for legislative plates and amateur radio operator

license plates.

The Tax Commission is hereby directed to develop and

implement a system whereby motor license agents are

permitted to accept applications for special license plates

authorized under this section. The motor license agent shall

confirm the applicant’s eligibility, if applicable, collect and

deposit any amount specifically authorized by law, accept

and process the necessary information directly into such

system and generate a receipt accordingly. For performance

of these duties, motor license agents shall retain the fee

provided in Section 1141.1 of this title for registration of a

motor vehicle. The motor license agent fees for acceptance

of applications and renewals shall be paid out of the

Oklahoma Tax Commission Reimbursement Fund.

B. The special license plates provided by this section

are as follows:

1. Prisoner of War License Plates — such plates shall

be designed for honorably discharged or present members

of the United States Armed Forces and civilians who

were former prisoners of war held by a foreign country

and who can provide proper certification of that status.

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Appendix E

Such persons may apply for a prisoner of war license

plate for no more than two vehicles with each vehicle

having a rated carrying capacity of one (1) ton or less.

The surviving spouse of any deceased former prisoner

of war, if the spouse has not since remarried, or if

remarried, the remarriage is terminated by death, divorce,

or annulment, may apply for a prisoner of war license

plate for one vehicle with a rated carrying capacity of

one (1) ton or less. The fee provided by this section for

the special license plate authorized by this paragraph

shall be in addition to all other registration fees provided

by law, except the registration fees levied by Section 1132

of this title;

2. National Guard License Plates - such plates shall

be designed for active or retired members of the

Oklahoma National Guard. Retirees who are eligible for

such plates shall provide proof of eligibility upon initial

application, but shall not be required to provide proof

of eligibility annually;

3. Air National Guard License Plates — such plates

shall be designed for active or retired members of the

Oklahoma Air National Guard. Retirees who are eligible

for such plates shall provide proof of eligibility upon

initial application, but shall not be required to provide

proof of eligibility annually;

4. United Sates Armed Forces - such plates shall

be designed for active, retired, former or reserve

members of the United States Armed Forces, and shall

identify which branch of service, and carry the emblem

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Appendix E

and name of either the Army, Navy, Air Force, Marines

or Coast Guard, according to the branch of service to

which the member belongs or did belong. Former

members who have been dishonorably discharged shall

not be eligible for such plates. Persons applying for such

license plate must show proof of present or past military

service by presenting a valid Uniformed Services Identity

Card or the United States Department of Defense Form

(DD)214. Retired or former members who are eligible

for such plates shall provide proof of eligibility upon

initial application, but shall not be required to provide

proof of eligibility annually;

5. Congressional Medal of Honor Recipient License

Plates — such plates shall be designed for any resident of

this state who has been awarded the Congressional Medal

of Honor. Such persons may apply for a Congressional

Medal of Honor recipient license plate for each vehicle

with a rated carrying capacity of one (1) ton or less. There

shall be no registration fee for the issuance of this plate;

6. Missing In Action License Plates — such plates

shall be designed to honor members of the United States

Armed Forces who are missing in action. The spouse of

such missing person, if the spouse has not since

remarried, or if remarried, the remarriage is terminated

by death, divorce, or annulment, and each parent of the

missing person may apply for a missing in action license

plate upon presenting proper certification that the person

is missing in action and that the person making the

application is the qualifying spouse or the parent of the

missing person. The qualifying spouse and each parent

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Appendix E

of the missing person may each apply for the missing in

action license plate for each vehicle with a rated carrying

capacity of one (1) ton or less;

7. Purple Heart Recipient License Plates — such

plates shall be designed for any resident of this state

presenting proper certification from the United States

Department of Veterans Affairs or the Armed Forces of

the United States certifying that such resident has been

awarded the Purple Heart military decoration. Such

persons may apply for a Purple Heart recipient license

plate for vehicles having a rated carrying capacity of one

(1) ton or less. The surviving spouse of any deceased

veteran who has been awarded the Purple Heart military

Jecoration, if such spouse has not since remarried, or if

remarried, the remarriage has been terminated by death,

divorce or annulment, may apply for such plate for one

vehicle with a rated carrying capacity of one (1) ton or

less;

8. Pearl Harbor Survivor License Plates — such plates

shall be designed for any resident of this state who can

be verified by the United States Department of Veterans

Affairs or the Armed Forces of the United States as being:

a. amember of the United States Armed Forces

on December 7, 1941,

b. stationed on December 7, 1941, during the

hours of 7:55 a.m. to 9:45 a.m. Hawaii time at Pearl

Harbor, the island of Oahu, or offshore at a distance

not to exceed three (3) miles, and

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Appendix E

c. a recipient of an honorable discharge from

the United States Armed Forces.

Such person may apply for a Pearl Harbor Survivor

license plate for each vehicle with a rated carrying

capacity of one (1) ton or less;

9. Iwo Jima License Plates — such plates shall be

designed for any resident of this state who can be verified

by the United States Department of Veterans Affairs or

the Armed Forces of the United States as being:

a. amember of the United States Armed Forces

in February of 1945,

b. stationed in February of 1945 on or in the

immediate vicinity of the island of Iwo Jima, and

c. a recipient of an honorable discharge from

the United States Armed Forces.

Such person may apply for an Iwo Jima license plate for

each vehicle with a rated carrying capacity of one (1)

ton or less.

Such license plate shall have the legend “Oklahoma OK”

and shall contain three letters and three numbers.

Between the letters and numbers shall be a logo of the

flag-raising at Iwo Jima. Below the letters, logo and

numbers, the plate shall contain the words “FEB.” at the

left, “Iwo Jima” in the center and “1945” at the right.

Such plates shall not be subject to the design

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Appendix E

requirements of any other license plates prescribed by

law other than the space for the placement of the yearly

decals for each succeeding year of registration after the

initial issue;

10. D-Day Survivor License Plates - such plates shall

be designed for any resident of this state who can be

verified by the United States Department of Veterans

Affairs or the Armed Forces of the United States as being:

a. amember of the United States Armed Forces

on June 6, 1944,

b. a participant in the Allied invasion of the

coast of Normandy on June 6, 1944; provided, if

such participation cannot be verified by the United

States Department of Veterans Affairs or the Armed

Forces of the United States, the Tax Commission

may, in its discretion, accept evidence of such

participation from the person applying for the

license plate, and

c. a recipient of an honorable discharge from

the United States Armed Forces.

Such person may apply for a D-Day Survivor license

plate for each vehicle with a rated carrying capacity of

one (1) ton or less;

11. Killed in Action License Plates — such plates shall

be designed to honor members of the United States

Armed Forces who were killed in action. The spouse of

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Appendix E

the deceased person, if the spouse has not remarried, or

if remarried, the remarriage is terminated by death,

divorce, or annulment, may apply for a killed in action

license plate upon presenting proper certification that

the person was killed in action and that the person making

the application is the qualifying spouse of the deceased

person. The qualifying spouse may apply for a killed in

action license plate for no more than two vehicles with

each vehicle with a rated carrying capacity of one (1)

ton or less. The fee provided by this section for the

special license plate authorized by this paragraph shall

be in addition to all other registration fees provided by

law, except the registration fees levied by Section 1132

of this title;

12. Gold Star Parents License Plates — such plates

shall be designed to honor members of the United States

Armed Forces who were killed during a war. The parents

of the deceased person may apply for a gold star license

plate upon presenting proper certification that the person

was killed during a war and that the person making the

application is the parent of the deceased person. The

parent may apply for a gold star parent license plate for

no more than two vehicles with each vehicle having a

rated carrying capacity of one (1) ton or less. The fee

provided by this section for the special license plate

authorized by this paragraph shall be in addition to all

other registration fees provided by law, except the

registration fees levied by Section 1132 of this title;

13. Military Decoration License Plates — such plates

shall be designed for any resident of this state who has

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Appendix E

been awarded the Distinguished Service Medal, the

Distinguished Service Cross, the Distinguished Flying

Cross, the Bronze Star military decoration or the Silver

Star military decoration. Such persons may apply for a

military decoration license plate for each vehicle with a

rated carrying capacity of one (1) ton or less;

14. Vietnam Veteran License Plates — such plates

shall be designed for honorably discharged or present

members of the United States Armed Forces who served

in the Vietnam Conflict. Such persons may apply for a

Vietnam veteran license plate for each vehicle with a

rated carrying capacity of one (1) ton or less;

15. Police Officer License Plates — such plates shall

be designed for any currently employed or retired

municipal police officer. Police officers may apply for

police officer license plates for vehicles with a rated

capacity of one (1) ton or less or for a motorcycle upon

proof of employment by or retirement from a municipal

police department by either an identification card or letter

from the chief of the police department or the Oklahoma

Police Pension and Retirement Board. Retirees who are

eligible for such plates shall provide proof of eligibility

upon initial application, but shall not be required to

provide proof of eligibility annually. The license plates

shall be designed in consultation with municipal police

departments of this state; provided, the license plate for

motorcycles may be of similar design to the license plate

for motor vehicles or may be a new design in order to

meet space requirements for a motorcycle license plate;

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Appendix E

16. World War II Veteran License Plates — such plates

' shall be designed to honor honorably discharged former

members of the United States Armed Forces who are

residents of this state and who can be verified by the

Oklahoma Military Department, the Department of

Veterans Affairs or the Armed Forces of the United States

as having served on federal active duty anytime during

the period from September 16, 1940, to December 7,

1945. The former members may apply for a World War

II Veteran license plate for vehicles with a rated carrying

capacity of one (1) ton or less.

The license plate shall have the legend "Oklahoma"

and shall contain, in the center of the plate, either the

Thunderbird Insignia of the 45th Infantry Division in

the prescribed red and gold coloring or the emblem of

the Army, Navy, Air Force, Marines or Coast Guard

according to the branch of service to which the member

belonged. For the purpose of license plate identification,

the plate shall contain four digits, two digits at the left

and two digits at the right of the insignia or emblem.

Centered on the bottom of the license plate shail be the

words “WORLD WAR IP’;

17. Korean War Veteran License Plates — such plates

shall be designed to honor honorably discharged former

members of the United States Armed Forces who are

residents of this state and who can be verified by the

Oklahoma Military Department, the Department of

Veterans Affairs or the Armed Forces of the United States

as having served on federal active duty anytime during

the period from June 27, 1950, to January 31, 1955, both

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Appendix E

dates inclusive. The former members may apply for a

Korean War Veteran license plate for vehicles with a rated

carrying capacity of one (1) ton or less.

The license plate shall have the legend

“OKLAHOMA?” and shall contain, in the center of the

plate, either the Thunderbird Insignia of the 45th Infantry

Division in the prescribed red and gold coloring or the

emblem of the Army, Navy, Air Force, Marines or Coast

Guard according to the branch of service to which the

member belonged. For the purpose of license plate

identification, the plate shall contain four digits, two

digits at the left and two digits at the right of the insignia

or emblem. Centered on the bottom of the license plate

shall be the word “KOREA”;

18. Municipal Official License Plates — such plates

shall be designed for persons electéd to a municipal office

in this state and shall designate the name of the

municipality and the district or ward in which the

municipal official serves. The plates shall only be

produced upon application;

19. Red Cross Volunteer License Plates — such plates

shall be designed to honor American Red Cross

volunteers and staff who are residents of this state. Such

persons must present an identification card issued by the

American Red Cross and bearing a photograph of the

person. The license plate shall be designed with the

assistance of the American Red Cross and shall have the

legend “Oklahoma OK!” in the color Pantone 186C Red.

Below the legend the symbol of the American Red Cross

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Appendix E

and no more than three letters and three numbers shall

be in the color Pantone 186C Red. Below the symbol

and letters and numbers shall be the words “American

Red Cross" in black. The plates shall not be subject to

the design requirements of any other license plates

prescribed by law other than the space for the placement

of the yearly decals for each succeeding year of

registration after the initial issue;

20. Veterans of Foreign Wars License Plates — such

plates shall be designed to honor the veterans of foreign

wars and issued to any resident of this state who is a

member of a Veterans of Foreign Wars organization in

this state. Such persons may apply for Veterans of

Foreign Wars license plates upon proof of membership

in a Veterans of Foreign Wars organization. The license

plate shall be designed in consultation with the Veterans

of Foreign Wars organization;

21. Desert Storm License Plates — such plates shall

be designed and issued to any honorably discharged or

present member of the United States Armed Forces who

served in the Persian Gulf Crisis and the Desert Storm

operation. Such persons may apply for a Desert Storm

license plate for each vehicle with a rated carrying

capacity of one (1) ton or less;

22. Military Reserve Unit License Plates - such

plates shall be designed and issued to any honorably

discharged or present member of a reserve unit of the

United States Armed Forces. Such persons may apply

for a Military Reserve Unit license plate for each vehicle

with a rated carrying capacity of one (1) ton or less;

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Appendix E

23. Oklahoma City Bombing Victims and Survivors

License Plates — such plates shall be designed and issued

to any victim or survivor of the bombing attack on the

Alfred P. Murrah Federal Building in downtown

Oklahoma City on April 19, 1995;

24. Civil Air Patrol License Plates — such plates shall

be designed and issued to any person who is a member

of the Civil Air Patrol. Such persons may apply for a

Civil Air Patrol license plate for each vehicle with a rated

carrying capacity of one (1) ton or less upon proof of

membership in the Civil Air Patrol. The license plate

shall be designed in consultation with the Civil Air

Patrol;

25. Ninety-Nines License Plates — such plates shall

be designed and issued to members of the Ninety-Nines.

Persons applying for such license plate must show proof

of membership in the Ninety-Nines. The license plates

shall be designed in consultation with the Ninety-Nines;

26. Combat Infantryman Badge License Plates —

such plates shall be designed to honor recipients of the

Combat Infantryman Badge. The plate shall have the

legend “Oklahoma OK”. Below the legend shall be the

Combat Infantryman Badge and three numbers. Below

the badge and the numbers shall be the words "Combat

Infantryman Badge". Such persons may apply for a

Combat Infantryman Badge license plate for each vehicle

with a rated carrying capacity of one (1) ton or less;

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Appendix E

27. Somalia Combat Veterans License Plates — such

plates shall be designed and issued to any honorably

discharged or present member of the United States Armed

Forces who saw combat in the United Nations relief

effort. Such persons may apply for a Somalia Combat

Veteran license plate for each vehicle with a rated

carrying capacity of one (1) ton or less;

28. Police Chaplain License Plates — such plates

shall be designed and issued to members of the

International Conference of Police Chaplains (ICPC)

who have completed the ICPC requirements for basic

certification as a police chaplain. The license plates shall

be designed in consultation with the ICPC;

29. Joint Service Commendation Medal License

Plates — such plates shall be designed and issued to any

resident of this state who has been awarded the Joint

Service Commendation Medal by the United States

Secretary of Defense;

30. Merchant Marine License Plates — such plates

shall be designed, subject to criteria to be presented to

the Tax Commission by the Oklahoma Department of

Veterans Affairs, and issued to any person who during

combat was a member of the Merchant Marines as

certified by the Oklahoma Department of Veterans

Affairs. Such license plate may be issued for each vehicle

with a rated carrying capacity of one (1) ton or less;

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Appendix E

31. Legislative License Plates — such plates shall be

designed for persons elected to the Oklahoma Legislature

and shall designate the house of the Legislature in which

the legislator serves and the district number;

32. Disabled Veterans License Plates — such plates

shall be designed for persons presenting proper

certification from the United States Department of

Veterans Affairs or the Armed Forces of the United States

certifying such veteran has a service-connected disability

rating of fifty percent (50%) or more, regardless which

agency pays the disability benefits, or that such veteran

has been awarded a vehicle by the United States

government or receives a grant from the United States

Department of Veterans Affairs for the purchase of an

automobile due to a service-connected disability rating

or due to the loss of use of a limb or an eye. Such persons

may apply to the Tax Commission for a disabled veterans

license plate or to a motor license agent for a regular

license plate for no more than two vehicles with each

vehicle having a rated carrying capacity of one (1) ton

or less. The surviving spouse of any deceased disabled

veteran, if the spouse has not since remarried, or if

remarried, the remarriage is terminated by death, divorce,

or annulment, may apply for a disabled veterans license

plate for one vehicle with a rated carrying capacity of

one (1) ton or less. The fee provided by this section for

the special license plate authorized by this paragraph

shall be in addition to all other registration fees provided

by law, except the registration fees levied by Section 1132

of this title. The total expense of this license plate shall

not exceed Five Dollars ($5.00).

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Appendix E

If the person qualifies for a disabled veterans license

plate and is also eligible for an insignia as a physically

disabled person under the provisions of Section 15-112

of this title, the person shall be eligible to receive a

disabled veterans license plate that also displays the

international accessibility symbol, which is a stylized

human figure in a wheelchair. Upon the death of the

disabled veteran with a disabled veterans license plate

with the international accessibility symbol, the plate shall

be returned to the Tax Commission;

33. United States Air Force Association License

Plates — such plates shall be designed for members of

the United States Air Force Association. Persons

applying for such license plate must show proof of

membership in the Association. The license plates shall

be designed in consultation with the Association;

34. Oklahoma Military Academy Alumni License

Plates — such plates shall be designed and issued to any

resident of this state who is an alumnus of the Oklahoma

Military Academy. Such persons may apply for an

Oklahoma Military Academy Alumnus license plate for

each vehicle with a rated carrying capacity of one (1)

ton or less. The license plates shall be designed in

consultation with the Oklahoma Military Academy and

shall contain the shield of the Academy;

35. Amateur Radio Operator License Plates — such

plates shall be designed and issued to any person, holding

a valid operator's license, technician class or better,

issued by the Federal Communications Commission, and

98a

Appendix E

who is also the owner of a motor vehicle currently

registered in Oklahoma, in which has been installed

amateur mobile transmitting and receiving equipment.

Eligible persons shal

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