ACLU sues state over ‘REZWEED’ vanity license plate

The American Civil Liberties Union of South Dakota wants a judge to stop the state from saying no to vanity license plates over “poor taste.”

The nonprofit filed its lawsuit in U.S. District Court in South Dakota on behalf of a client named Lynn Hart, who’d asked for and been denied a vanity plate that reads “REZWEED,” which was approved months later.

The lawsuit names South Dakota Department of Revenue Secretary Michael Houdyshell and Brenda King of the Division of Motor Vehicles, who inked the initial letter to Hart signaling the DMV’s denial of his vanity plate application.

While the DMV ultimately reversed itself on Hart’s license plate, the lawsuit notes that the DMV reserves the right to recall approved plates, and that such a recall could result in Hart losing his vanity plate.

ACLU is ‘RZNHELL’ with state over specialized plate denials

The lawsuit follows a letter from the ACLU to Houdyshell and Attorney General Marty Jackley in late August that demanded a reevaluation of denied vanity plates and challenged the  constitutionality of the law and accompanying policy guidance that allow the state to issue denials for plates dubbed “offensive to good taste and decency.”

The letter pointed to 2,135 denied plates and claimed that about 32% had been denied based on what the organization characterized as “viewpoint discrimination.”

The DMV announced in September that it planned to review and clarify its approval process, but the ACLU argues in a press release on the Hart lawsuit that the state’s pledge to review policy “doesn’t change or repeal any parts of the codified law in question and still contains provisions that censor free speech of South Dakotans.”

Hart is a longtime activist in South Dakota who’s Black and an enrolled member of the Yankton Sioux Tribe. Hart advocated for the state to recognize Martin Luther King Jr. Day in 1990 through testimony in Pierre, and has continued to advocate for issues affecting Blacks and Indigenous South Dakotans. The complaint notes that the U.S. Marine Corps veteran has been inducted into the National Western Multicultural Museum Hall of Fame.

Hart’s current business, the lawsuit says, is “Rez Weed Indeed,” which “supports and promotes the legal selling and use of Medical and Recreational Marijuana on all Federally recognized Indian reservations.”

He applied for a “REZWEED” license plate in May of 2022 to “to raise awareness of his business and its message of Tribal Sovereignty,” but was denied a plate. Months later, in September, the lawsuit says, a separate DMV employee reviewed his plate application and approved the plate.

Because state law and policy allow for the state to recall plates issued “in error,” the ACLU argues, Hart’s constitutional rights – and those of others who’ve been denied or had their plates recalled – have been violated by the state.

The organization says “the 8th Circuit U.S. Court of Appeals has ruled that license plates are a legitimate place for personal and political expression, and courts throughout the country have struck down laws similar to South Dakota’s.”

“South Dakota, like other states, has created a system of protected speech through the personalized plate program and is required to comply with the Constitution,” said Stephanie Amiotte, ACLU of South Dakota legal director.

The press release on the lawsuit points to a debate in the 2008 South Dakota Legislature’s transportation committee on a bill that would have repealed the state’s personalized license plate laws.

Deb Hillmer, then-director of the DMV, told lawmakers that the law as written does not pass constitutional muster and referenced the 8th Circuit decision in her testimony. Dan Mosteller, the then-superintendent of the state Highway Patrol, supported the bill. The committee nonetheless voted to keep the statute in place. 

The ACLU’s complaint asks a judge to permanently stop the state from enforcing its “poor taste” laws and accompanying policy guidance.

Attorney General Marty Jackley, whose office is tasked with defending the state in court, said on Monday through spokesman Tony Mangan that the state cannot comment on ongoing litigation.