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Click here for the full text of this decision FACTS:Under Louisiana law, the secretary of public safety and corrections has the task of issuing license plates for state-registered vehicles. The state legislature has authorized that “special prestige license plates” can be issued if the legislature authorizes it and certain administrative requirements are met. Each specialty plate is authorized by a separate statute. More than half of the plates include a charge in addition to the normal, nominal handling charge, though this extra amount is alternatively called “fee,” “charge,” “royalty,” “donation” and “funds.” The amount of this extra charge differs from plate to plate, as well. Each plate’s statute also designates which entities, if any, the additional money is to be funneled to. There are also some differences as to the plates’ editorial and aesthetic qualities, as well as applicant eligibility. The Louisiana legislature approved the creation of a “Choose Life” prestige license plate. Proceeds from the extra fees were to be directed to organizations that counsel pregnant women to give up their unborn children for adoption. A group of plaintiffs challenged the constitutionality of the “Choose Life” plate in 2000. A district court found the entire prestige license plate program created a forum for speech that was not viewpoint-neutral, therefore the whole scheme was unconstitutional. The district court granted declaratory and injunctive relief. On appeal, the 5th U.S. Circuit Court of Appeals reversed on the ground that the plaintiffs lacked standing. On rehearing, the 5th Circuit slightly amended its original order. On rehearing, the 5th Circuit said that the case was to be dismissed “unless the plaintiff Keeler amends her petition within a reasonable time to challenge the state’s overall policy and practice of issuing specialty license plates.” This court’s remand also allowed Keeler to add a facial challenge to the license-plate program. On remand, the third amended complaint names Keeler, Henderson, Loewy and LaMothe as individual plaintiffs, as well as the National Council of Jewish Women and Planned Parenthood of Louisiana (PPL). All attempted to establish their standing. The third amended complaint also included a First Amendment facial challenge to the entire license plate-issuing scheme, as well as a new Establishment Clause claim. Though the district court did not believe that the 5th Circuit’s mandate prevented the plaintiffs, other than Keeler, from reasserting standing, the district court nonetheless found that Keeler’s amended petition cured the defects of her standing, as well as that of PPL’s. The district court rejected the state’s argument that the Tax Injunction Act barred the suit. The TIA prohibits a federal court 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.” The district court again found that the license plate scheme created a public forum that was not viewpoint-neutral and directed that the program be enjoined. The district court refused to stay its ruling. HOLDING:Vacated and remanded. The court again addresses the standing of both PPL and Keeler. The court points out that the district court failed to narrowly abide by the 5th Circuit’s earlier mandate. First, Keeler was to be allowed to amend her complaint to add the facial challenge and to establish her standing. The mandate “was not an invitation for Keeler to add new claims or rationales for PPL’s standing.” The court, therefore, dismisses PPL from the suit. The court addresses the TIA argument, explaining that, if the extra charges added onto the issuance of the prestige plates amounts to a tax, the TIA will bar Keeler’s suit, since she seeks to shut down the entire program. The court adds that a broad construction of “tax” is necessary to honor Congress’ goals in promulgating the TIA, including that of preventing federally based delays in the collection of public revenues by state and local governments. Keeler relies on Neinast v. Texas, 217 F.3d 275 (5th Cir. 2000), to argue that the extra charges are fees exempt from the TIA’s prohibitions. Under Neinast, charges will be considered exempt fees when they 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.” The court first finds that the fees for Louisiana specialty plates are directly set by the legislature, even though they are collected by a state agency’s motor vehicle unit. Neinast concluded that an analogous feature of the handicapped parking fees suggested a TIA-covered tax. Next, the fact that specialty plate charges are paid by some, though not all, purchasers, is suggestive of Neinast. Neinast held that the charge for handicapped placards represented a fee in this respect, rather than a tax. However, the 5th Circuit also has held that special assessments imposed on a limited subgroup of the population, were taxes for the purpose of the TIA, because their revenue was used for community improvements. Thirdly, the court finds Keeler’s argument � that specialty plate fees cannot be taxes, because they do not serve the general community welfare, inasmuch as they are earmarked for special recipient organizations � unpersuasive. Keeler’s personal view of the public benefit served by these expenditures may differ from that of the Louisiana Legislature, but it does not transform the additional charges for specialty plates into fees designated for a regulatory purpose, the court holds. The court takes up two findings emphasized by the district court in deciding that the charges were exempt fees, not taxes: that they were paid voluntarily by the people who wanted to purchase the plates, and that the charges were not uniform among plates. As to the first point, the court finds that it is not the taxpayer’s motivation (the voluntariness of payment) but the government’s purpose in exacting the charge (here, the additional amount above the handling cost and ordinary vehicle registration tax) that distinguishes taxes from non-TIA-covered regulatory fees. As to the second point, the court finds that while the nonuniformity of the fees sets it apart from other taxing schemes, the additional charges to not “regulate” anything, do not defray costs of the program, and are distributed in different manners. This is a legitimate exercise of “legislative line-drawing,” the court says, not a strike against characterizing the charges as something other than taxes. The court acknowledges that, even if these charges are called taxes, there is an exception to the TIA recognized in Hibbs v. Winn, 124 S.Ct. 2276 (2004). Hibbs removes a case from the TIA’s ambit where a third party, not the taxpayer, files suit, and the suit’s success will enrich, not deplete, the government entity’s coffers. Keeler’s suit fails the second portion of this test, as the remedy she requests � a shut-down of the whole prestige license plate program � will reduce state tax revenues. “Had Keeler sought . . . forum-opening relief, and had she succeeded on the merits (a hypothetical exercise on this record), the proper relief would have entailed an increase of state revenues and would not conflict with Hibbs or the TIA. We are bound, however, by Keeler’s tactical choice and the district court’s actual remedy.” OPINION:Edith H. Jones, J.; Jolly, Jones and Prado, JJ.

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