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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION
THOMAS ROBB, et al.,
Plaintiffs,
v.
HENRY HUNGERBEELER, et al.,
Defendants.
Case No. 4:01CV1133 CDP
281 F. Supp. 2d 989
September 10, 2003, Decided
MEMORANDUM AND ORDER
This case
involves the state's second refusal to allow the Ku Klux Klan to participate in
Missouri's Adopt-A-Highway program. In an earlier case the Court of Appeals
held that the Missouri Highway and Transportation Commission had
unconstitutionally denied the Klan's application to the program based on the
Klan's beliefs and advocacy. After that ruling, the Commission adopted new
state regulations, which became effective in January of 2001. The Klan applied
again, and, citing the new regulations, the Commission again denied the
application. The Klan brought this § 1983 action seeking declaratory judgment
and injunctive relief.
The parties
have filed cross-motions for summary judgment. After careful consideration of
the facts, I will grant the Klan's motion for summary judgment. The undisputed
facts show that Commission's reasons for denying the Klan's application are
unconstitutional. The Court of Appeals has already ruled that the state cannot deny
the application because the Klan discriminates on the basis of race, and that
decision is binding in this case. The state's other asserted justification --
that it can deny an application where courts have previously taken judicial
notice that the applicant has a history of violence -- is not reasonable in
light of the purpose of the forum. I will therefore enter a declaratory
judgment in favor of the Klan.
FACTS
The
Missouri Highways and Transportation Commission is responsible for the
location, design, and maintenance of all highways in the State of Missouri. In
furtherance of its continuing maintenance of the state highway system, the
Commission established the Adopt-A-Highway program, which is a voluntary
program enacted to "reduce litter along the highways, enhance the
environment and beautify Missouri's roadsides." Mo. Code Regs. Ann. tit.
7, § 10-14.010(2). Participants in the program conduct activities to help
control litter along Missouri highway rights-of-way, which minimizes the expenditures
of public funds for litter control.
Civic and
nonprofit organizations, commercial and private enterprises, and individuals
may submit an application, on a form provided by the Commission, to adopt a
designated portion of a state highway. Id. at § 10-14.030. In return, the
participants receive recognition for their efforts through a sign acknowledging
the identity of the individual or group providing the work. The Commission
bears the costs of sign production, erection, and maintenance. The sign, which
is erected on the adopted section of the highway, lists only the name of the
program participant. The Commission does not allow any symbols, logos,
advertising, or other statements to be placed on the signs. Id. at § 10-14.050.
If an application is approved by the Commission, the adopter or
the adopter's representative executes a written agreement with the Commission
setting forth each party's responsibilities. Id. at § 10-14.040. In this
contract, the adopter agrees to "indemnify and hold harmless the
commission and department and their officers, employees and agents from any
claim, lawsuit or liability which may arise from the adopter's participation in
the program." Id. at § 10-14.040(2)(K). The Commission is responsible for
determining the specific section of highway right-of-way [*993] that is to be
adopted. The Commissions also provides the adopter with safety training and
safety equipment, and agrees to remove and dispose of filled trash bags along
the sides on the highway.
In March of 2000, the United States Court of Appeals for the
Eighth Circuit held that the Commission could not exclude the Knights of the Ku
Klux Klan from its Adopt-A-Highway program solely on the basis of the Klan's
viewpoint. Cuffley v. Mickes, 208 F.3d 702, 707 (8th Cir. 2000). n1 After this
decision, the Commission promulgated new program regulations with respect to
eligible adopters, which became effective on January 30, 2001. These
regulations provide in part:
(1) The adopter or adopter representative of a group who desires
to participate in the program shall submit an application to the commission on
a form provided by the commission.
(2) Eligible Adopters.
Eligible adopters include civic and nonprofit organizations, commercial and
private enterprises and individuals: 1) who have not been convicted of, or pled
guilty or no contest to, a violent criminal activity, except as provided below;
2) whose participants have not been convicted of, or pled guilty or no contest
to, a violent criminal activity, except as provided below; 3) for whom state or
federal courts have not taken judicial notice of a history of violence; or 4)
who do not deny membership on the basis of race, color, or national origin. Any
individual adopter or participant may be eligible ten (10) years after the
completion of incarceration, probation or parole. Applicants who do not meet
the eligibility requirement will be denied participation in the program. The
commission reserves the right to limit the number of adoptions for a single
group.
(3) Acceptance of
Application. The commission will have sole responsibility in determining
whether an application is rejected or accepted and determining what highway
will or will not be eligible for adoption.
* * *
(c) The adopter
representative will certify on the application form that the group or
organization does not deny membership on the basis of race, color, or national
origin.
Mo. Code Reg. Ann. tit. 7, §
10-14.030(2).
On April
19, 2001, Ralph L. Griffith, the Unit Coordinator for the Klan, Realm of
Missouri, Unit 188, filed an application on behalf of the Klan to participate
in the Adopt-A-Highway program on a one-half mile long stretch of Route 21 in
Washington County, Missouri. Don Hillis, a Commission state maintenance
engineer, reviewed the Klan's application under the procedures set forth under
the new regulations. In a May 18, 2001 letter to Griffith, the Commission
notified the Klan that its application was denied, stating:
Under the Adopt-A-Highway rules, a group or organization is eligible to
participate in the Adopt-A-Highway program only if it meets the qualification
requirements set forth in the state regulations, specifically 7 CSR 10-14.030.
Those requirements provide that no group or organization may participate in the
program if state or federal courts have taken judicial notice of a history of
violence by that group or organization or if the group or organization denies
membership on the basis of race, color, or national origin.
[*994] Missouri undertakes
judicial notice checks of every applicant seeking to participate in the
program. Also, applicant groups or organization sare asked on the application
form whether they deny membership on the basis of race, color, or national
origin. Our judicial notice check confirms that courts have taken judicial
notice of a history of violence by the Knights of the Ku Klux Klan.
Furthermore, your application states that your group denies membership on the
basis of race, color or national origin.
I recognize that litigation
with Michael Cuffley and the Knights of the Ku Klux Klan, Realm of Missouri
recently concluded. In the course of that litigation, and as a result of court
rulings that were critical of Missouri Department of Transportation's rules and
process at the time, MoDOT responded by revising its rules to ensure they
contain eligibility criteria that are viewpoint neutral, that can be applied in
an objective, even-handed way, and that ensure that Missouri's voluntary litter
control program is conducted consistent with legal obligations and in the
public interest.
The Knights of the Ku Klux
Klan do not meet the program's eligibility requirements under these rules.
Therefore, your application is denied.
On July 19, 2001, Griffith and Thomas Robb, the National
Director of the Klan, filed suit seeking declaratory judgment and injunctive
relief. The Klan argues that the Commission unconstitutionally denied its
application based on the 2001 regulations. The Klan named as defendants Hillis,
Commission Director Henry Hungerbeeler, and the individual Commissioners. The
parties have filed cross-motions for summary judgment.
SUMMARY JUDGMENT STANDARD
To determine whether to grant summary judgment, I must view the
facts and inferences from the facts in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The moving party has
the burden to establish both the absence of a genuine issue of material fact
and that they are entitled to judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986). Once the moving party has met
this burden, the nonmoving party may not rest on the allegations in its
pleadings but by affidavit or other evidence must set forth specific facts
showing that a genuine issue of material fact exists. See Fed. R. Civ. P.
56(e).
At the summary judgment stage, I will not weigh the evidence
and decide the truth of the matter, but rather must only determine if there is
a genuine issue for trial. Anderson, 477 U.S. at 249. Rule 56(c) of the Federal
Rules of Civil Procedure mandates entry of summary judgment against a party, if
after adequate time for discovery, that party fails to make a showing
sufficient to establish the existence of an essential element of the case that
the party will have the burden of proving at trial. Celotex, 477 U.S. at
322-23.
DISCUSSION
The Klan
advances five arguments in support of its motion for summary judgment: (1) the
Commission should be collaterally estopped from relitigating the issues in this
case; (2) the Klan's membership requirements are protected by the First and Fourteenth
Amendment freedom of association; (3) the Commission impermissibly denied the
Klan's access to a public forum; (4) the Commission's judicial notice claim
that the Klan has a history of violence is without evidentiary foundation and
[*995] is therefore pretextual; and (5) the Commission's judicial notice claim
is based on impermissible guilt by association.
In its
motion for summary judgment, the Commission argues that: (1) permitting the
Klan to participate in the program would violate the equal protection clause
because the Klan's conduct would constitute state action; (2) allowing the Klan
to adopt a highway right-of-way would violate Title VI and would cause Missouri
to lose federal highway funding; (3) the Commission should be able to control
its own speech on highway signs; and (4) the Commission's reasons for rejecting
the Klan's application are constitutional under both the public and non-public
forum analysis.
In deciding
whether to grant summary judgment, I will address the two parts of the new
regulations on which the Commission relied in denying the Klan's application.
The Commission stated that the Klan's application was denied because: (1) the
Klan is ineligible because only organizations who do not deny membership to
individuals on the basis of race, color, or national origin are eligible, and
(2) the Klan is ineligible because the Commission's judicial notice check
indicates that federal and state courts have taken judicial notice of the
Klan's history of violence.
Discriminatory Membership
Regulation
In Cuffley
the Court of Appeals held that the Commission had unconstitutionally rejected
the Klan's application because of its racial discrimination in membership.
Citing its new regulations, the Commission has again denied the application for
the same reason. The Klan argues that the Commission should be collaterally
estopped from relitigating this issue because the Eighth Circuit has already
addressed this reason and found it unconstitutional. The Commission argues that
its new regulations make the issues different.
"The doctrine of collateral estoppel, or issue preclusion,
provides that when an issue of ultimate
fact has been determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in another lawsuit." United States
v. Brekke, 97 F.3d 1043, 1049 (8th Cir. 1996) (citing Ashe v. Swenson, 397 U.S.
436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970)). Collateral estoppel is
appropriate when: (1) the issue sought to be precluded is identical to the
issue previously decided by the court; (2) the prior action resulted in a final
adjudication on the merits; (3) the party sought to be estopped was either a
party or in privity with a party to the prior action; and (4) the party sought
to be estopped was given a full and fair opportunity to be heard on the issues
in the prior action. Canady v. Allstate Ins. Co., 282 F.3d 1005, 1016 (8th Cir.
2002). The party asserting collateral estoppel bears the burden of proving that
a prior decision satisfies these four elements. Berger Transfer & Storage
v. Central States, Southeast and Southwest Areas Pension Fund, 85 F.3d 1374,
1377 (8th Cir. 1996).
Collateral estoppel is referred to as "offensive" or
"nonmutual" when the parties are not identical. See Parklaine Hosiery
Co. v. Shore, 439 U.S. 322, 329 (1979). In such a situation, collateral
estoppel can still apply so long as the party against whom it is asserted had a
full and fair opportunity to litigate the issue. Id. The decision to allow offensive
collateral estoppel is left to the broad discretion of the district court,
because issues of fairness may arise in the offensive situation that are not
present where the parties are identical. Id. at 330-331; Aetna Cas. and Sur.
Co. v. General Dynamics Corp., 968 F.2d 707, 711 (8th Cir. 1992).
The plaintiffs here are Thomas Robb, the National Director of
the Klan, [*996] and Ralph L. Griffith, who actually filed the application with
the Adopt-A-Highway program, and who identifies himself as the Unit Coordinator
for the Klan, Realm of Missouri, Unit 188. In both of the earlier Cuffley cases
the plaintiff was Michael Cuffley, who identified himself as the "Unit
Recruiter" of the Klan. The Missouri Highways and Transportation
Commission, of course, is the same. The state defendant has pointed to no
difference in the cases that would make its incentive to litigate the prior
cases any different from its incentive to litigate this one, and in fact, the
record of the cases indicates that the state has litigated all three cases
forcefully and similarly.
In Cuffley,
the Eighth Circuit held that the Commission unconstitutionally denied the
Klan's application based on the Klan's racial superiority beliefs and advocacy.
208 F.3d at 707. In reaching this conclusion, the court rejected the
Commission's purported reasons for denying the application, one of which was
the Klan's discriminatory membership criteria. Under the 1995 regulation, the
applicant "must not discriminate on the basis of race, religion, color,
national origin or disability. Such
discrimination disqualifies the applicant from participation in the
program." Id. at 708.
The Eighth
Circuit held that this reason for denying the application constituted an
unconstitutional condition of the Klan's participation in the Adopt-A-Highway
program. The court noted that the
Commission "simply cannot condition participation in its highway adoption
program on the manner in which a group exercises its constitutionally protected
freedom of association." Id. at 709. "Requiring the Klan essentially
to alter is message of racial superiority and segregation by accepting
individuals of other races, religions, colors, and national origins in order to
adopt a highway would censor its message and inhibit its constitutionally
protected conduct." Id. at 708.
Under the
2001 regulations, an eligible adopter is one who does "not deny membership
on the basis of race, color, or national origin." The Commission attempts
to distinguish this somewhat new language by arguing that Griffith admitted on
the Adopt-A-Highway program form that the Klan, in fact, discriminates in its
membership. I fail to see any material or substantial difference between the
two regulations, other
than the deletion of disability and religion from the list. The 2001
regulations still allow the Commission to reject those applicants who
discriminate in their membership criteria. The Eighth Circuit has conclusively
held that this violates the Klan's First Amendment right to freedom of
association.
The Supreme Court has stated that the "forced inclusion of an unwanted person in a group
infringes the group's freedom of expressive association if the presence of that
person affects in a significant way the group's ability to advocate public or
private viewpoints." Boy Scouts of America v. Dale, 530 U.S. 640, 648
(2000) (citing New York State Club Assn., Inc. v. City of New York, 487 U.S. 1,
13 (1988)). "Freedom of association . . . plainly presupposes a freedom
not to associate." Roberts v. United States Jaycees, 468 U.S. 609, 622, 82
L. Ed. 2d 462, 104 S. Ct. 3244 (1984). The Commission's new regulation
contravenes this freedom by essentially requiring the Klan to alter its message
of racial superiority and segregation by accepting individuals of other races,
colors, and national origins.
Although not mentioned in its letter, but nonetheless related to
the discriminatory membership regulation, the Commission also argues that
permitting the Klan to participate in the Adopt-A-Highway [*997] program would
violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and would
cause Missouri to lose federal highway funding. The Eighth Circuit addressed
and rejected this very same argument in Cuffley as follows:
The State's third purported
reason for denying the Klan's application is that allowing the Klan to
participate in the Adopt-A-Highway program would violate Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d (1994), and could cause the State to lose
federal highway funding. Under Title VI, "no person in the United States
shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance."
Id.; see also id. § 2000d-4a (defining "program or activity" to
include all operations of State government departments); id. § 2000d-1
(authorizing termination of federal funding for programs that violate Title
VI).
Title VI clearly does not
apply directly to prohibit the Klan's discriminatory membership criteria. The
Klan is not a direct recipient of federal funds nor are federal funds earmarked
for the Klan. See National Collegiate Athletic Ass'n v. Smith, 525 U.S. 459,
468, 119 S. Ct. 924, 142 L. Ed. 2d 929 (1999) ("Entities that receive
federal assistance, whether directly or through an intermediary, are recipients
within the meaning of Title IX; entities that only benefit economically from
federal assistance are not."). There is not even an allegation here that
the State pays for the Adopt-A-Highway program with earmarked federal funds.
The Klan thus is not subject to Title VI.
The question remains,
however, whether Title VI prohibits the State from allowing the Klan to
participate in the Adopt-A-Highway program. Under U.S. Department of Transportation regulations,
the State, as a recipient of federal funds, "may not, directly or through
contractual or other arrangements, on the grounds of race, color, or national
origin ... deny a person an opportunity to participate in the program through
the provision of services or otherwise or afford him an opportunity to do so
which is different from that afforded others under the program." 49 C.F.R.
§ 21.5(b)(1)(vi) (1999). The United States, as amicus curiae, argues that, in
allowing the Klan to adopt a highway, the State would violate the regulatory
prohibition on any arrangement that bars individuals from participating in a
program on the basis of race. In essence, the United States argues that allowing
the Klan to adopt a portion of highway would deny other people an opportunity
to pick up litter on that portion of the highway on the same terms as the Klan.
Once again, we note that the Klan's adoption of a highway does not in any way
prohibit others from cleaning along that portion of the highway. But more to
the point, we believe the United States interprets the "program" at
issue too narrowly. Neither the Klan nor the State would operate a subprogram
on the Klan's adopted stretch of highway; instead, the Klan simply would be one
of many participants in the overall Adopt-A-Highway program. So long as the
State does not deny anyone an opportunity to adopt a highway on an improper
basis, the State does not violate Title VI. The Klan, as one of many voluntary participants in the program, is free to
determine its own membership
Id. at 710-11.
Because the
both Klan's discriminatory membership regulation and the Title VI argument have
already been litigated in Cuffley, which resulted in a final adjudication
[*998] on the merits, and because the Commission had a full and fair
opportunity to be heard on these identical issues, I will apply offensive
collateral estoppel and grant summary judgment to plaintiffs on these claims.
Judicial Notice Regulation
The Commission also relies on the new judicial notice of violence
regulation to deny the Klan's application. The Klan seeks the benefits of
collateral estoppel on this issue as well. Addressing the 1995 regulation, the
Eighth Circuit in Cuffley stated in part:
The State's second purported reason, that the Klan has a history of
unlawfully violent and criminal behavior, is based on another of the State's
new regulations: "Applicants with a history of unlawfully violent or
criminal behavior will be prohibited from participation in the program."
Mo. Code. Regs. Ann. tit. 7, § 10-14.030(2)(C). All of the evidence, however,
supports the Klan's contention that this reason is pretextual.
As we read the regulation, anyone who has ever committed a criminal act, from murder and mayhem to
joyriding and jaywalking, is ineligible to participate in the program. Were the
State actually to enforce this regulation with any regularity, we have little
doubt the Adopt-A-Highway program would soon have few adopters.
* * *
. . . That the State does not know how the regulation applies in
practice to the Adopt-A-Highway program is not surprising because the State has
never applied the regulation to anyone
other than the Klan. Even though the regulation became effective in July 1995,
barely a year after the Klan filed its application, the State has never asked
an applicant a single question about criminal history, has never done a single
investigation of criminal history, and has no idea whether any of the participants
in the program have such a history. At oral argument, the State backed further
away from the incredible breadth of the regulation, arguing that it was
intended to address violent criminal behavior such as that committed by the
Klan in the past. The State's argument makes even clearer what was already obvious: that this regulation was intended to
target only the Klan and its views.
Cuffley, 208 F.3d at 710.
After reviewing the Commission's regulations, I will decline the
Klan's invitation to apply collateral estoppel to the judicial notice
regulation. Under the 2001 regulation, an eligible adopter is one "for
whom state or federal courts have not taken judicial notice of a history of
violence." This provision attempts to narrow the "incredible breadth"
of the 1995 regulation, and therefore the issues are not identical. Since the
regulations are not the same, the Commission did not have a full and fair
opportunity to litigate this issue in Cuffley, and collateral estoppel does not
apply.
Instead, I must determine whether the judicial notice reason
given by the Commission unconstitutionally violates the Klan's First Amendment
rights. The First Amendment, applied to the states through the due process
clause of the Fourteenth Amendment, see 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484, 496 n.1, 134 L. Ed. 2d 711, 116 S. Ct. 1495 (1996), guarantees
the right of freedom of speech to individuals and groups. See U.S. Constit.
amend. I. The amendment's prohibition against abridging speech extends to expressive
conduct, as long as that conduct is "sufficiently imbued with elements of
communication." Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342,
109 S. Ct. 2533 (1989).
[*999] The Supreme Court has articulated a three-step framework
to be used when analyzing restrictions on private speech on government
property. Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788,
87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985). First, the court must determine
whether the speech at issue is protected by the First Amendment. Id. at 797. If
the speech is protected, the court must then identify the nature of the forum,
because the extent to which the Government may limit access depends on whether
the forum is public or nonpublic." Id. Third, the court "must assess
whether the justifications for the exclusion from the relevant forum satisfy
the requisite standard." Id.
Turning to the first step, I find that the Klan's desired
participation in the Adopt-A-Highway program is "speech" protected by
the First Amendment. See Cuffley v. Mickes, 44 F. Supp. 2d 1023, 1026 (E.D. Mo.
1999); Missouri, ex rel., Missouri Highway and Transp. Comm'n v. Cuffley, 927
F. Supp. 1248, 1254-55 (E.D. Mo. 1996).
"Nonverbal conduct constitutes speech if it is intended to convey a
particularized message and the likelihood is great that the message will be
understood by those who view it, regardless of whether it is actually
understood in a particular instance in such a way." Burnham v. Ianni, 119
F.3d 668, 674 (8th Cir. 1997) (en banc).
Participants in the Adopt-A-Highway program intend to convey a
particular message to the traveling public by adopting a particular section of
a state highway. The Commission previously admitted that participants seek to
participate in the Adopt-A-Highway program in order to have their names on a
sign and to promote community awareness of their organizations. Although the
Commission questions the Klan's actual message and motive in seeking to
participate in the Adopt-A-Highway program, I find the Klan's speech is
constitutionally protected.
The second step in this analysis is to identify the nature of
the forum. It is fundamental that the "existence of a right of access to
public property and the standard by which limitations upon such a right must be
evaluated differ depending on the character of the property at issue."
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 74 L. Ed.
2d 794, 103 S. Ct. 948 (1983). In Perry, the Supreme Court described three
categories of public fora: (1) the traditional public forum; (2) the designated
or limited public forum; and (3) the nonpublic forum. Families Achieving
Independence and Respect v. Nebraska Dep't of Soc. Servs., 111 F.3d 1408, 1418
(8th Cir. 1997) (en banc).
Traditional public fora are "places which by long
tradition or by government fiat have been devoted to assembly and debate."
Perry, 460 U.S. at 45 . Examples of traditional public fora include streets,
parks, town squares, and public sidewalks, which have "immemorially been
held in trust for the use of the public and, time out of mind, 'have been used
for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.'" Id. (quoting Hague v. CIO, 307 U.S. 496,
515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939)). Traditional public fora receive the
greatest degree of constitutional protection. See Burnham v. Ianni, 119 F.3d at
675.
The second category of government property is the designated
public forum, which the state has opened to the public for expressive activity.
Perry, 460 U.S. at 46. "The Constitution forbids a state to enforce
certain exclusions from a forum generally open to the public even if it was not
required to create the forum in the first place." Id. [*1000] Examples of
designed public fora include university meeting facilities, school board
meetings, and municipal theaters, which have been designed for more limited
purposes or discussions. Id. at 45-46. So long as a state maintains a forum
that is generally open to the public, it is "bound by the same standards
as apply in a traditional public forum." Id. at 46.
The third category under Perry is the nonpublic forum, which
consists of all other public property that is not by tradition or designation a
forum for public communication. Families, 111 F.3d at 1419. This type of forum
consists of property usually incompatible with expressive activity. Examples of
nonpublic fora include prisons, military reservations, and a school district's
internal mailing system. Cornelius, 473 U.S. at 803-804. These nonpublic fora
are governed by less restrictive standards. See Perry, 460 U.S. at 46 (noting
that "the State, no less than a private owner of property, has the power
to preserve the property under its control for the use to which it was lawfully
dedicated").
The parties
here disagree about what the forum is, as well as whether that forum --
whatever it is -- is public, non-public, or something in between. Courts
considering Adopt-A-Highway programs have similarly disagreed. Cf. State of Texas v. Knights of the Ku Klux
Klan, 58 F.3d 1075, 1078 (5th Cir. 1995) (Texas Adopt-A-Highway Program itself
is the forum, and is non-public); State of Missouri, ex rel., Missouri Highway
and Transportation Comm'n v. Cuffley, 927 F. Supp. 1248, 1257 (E.D. Mo. 1997)
(highway right-of-way is the forum, and is probably a designated public forum);
Cuffley v. Mickes, 44 F. Supp.2d 1023, 1026 (E.D. Mo. 1999) (neither the
program nor the highway is a public forum, but the program is itself a
non-public forum); Knights of Ku Klux Klan v. Arkansas State Highway and
Transportation Dept., 807 F. Supp. 1427, 1434 (W.D. Ark. 1992) (highway rights
of way are a traditional public forum). It is unnecessary for me to decide whether the forum at
issue is the program or the highways, because from the undisputed evidence it
is clear that the Commission has not designated either the Adopt-A-Highway
program or the highway roadsides as a public forum.
Courts need to look "to the policy and practice of the
government to ascertain whether it intended to designate a place not
traditionally open to assembly and debate as a public forum." Cornelius,
473 U.S. at 802. I find that the undisputed facts demonstrate that the
Commission attempted to create a nonpublic forum rather than a traditional or
designed forum. First, the Commission plainly states in the regulations that
the "program is not intended as a means of providing a public forum for
the participants to use in promoting name recognition or political causes. Missouri
highway right-of-way is not a public forum." Mo. Code Reg. Ann. tit. 7, §
10-14.010(3). Second, the shoulders of highways are certainly not traditional
public fora, such as streets or parks. The Commission retains tight control
over access to the highway rights-of-way and to the Adopt-A-Highway program
itself. I agree with reasoning of Judge Limbaugh (in the second Cuffley case
decided by this court) when he stated that:
The Court finds that the
[Commission] does not presently intend to open the shoulders of the Missouri
state and interstate highway system for the purposes of traditional discourse.
Rather, the [Commission] has developed a scheme to have litter removed from the
roadsides cheaply by utilizing free labor. This program creates an extremely narrow
outlet for ancillary expression, strictly [*1001] limited to the participant's
name and the fact of his, her or its participation. The [Commission] maintains
tight control over both the program itself and the attendant opportunity for
expression it creates. The [Commission] provides the garbage bags for the
volunteers, and it strictly limits what they may place on the signs which the
[Commission] erects in recognition of their efforts. The state maintains strict
control over both the method of speech (placement of the sign and the act of
participation) and the message itself (the simple fact of the group's
participation in the program).
Cuffley v. Mickes, 44 F.
Supp. 2d at 1027. Because the shoulders of highways and the Adopt-A-Highway
program are not public fora, I will apply the nonpublic forum standard to the
Commission's judicial notice regulation.
When
government property is a nonpublic forum, regulations must be reasonable and
"not an effort to suppress expression merely because public officials
oppose the speaker's view." United States v. Kokinda, 497 U.S. 720,
730, 111 L. Ed. 2d 571, 110 S. Ct. 3115 (1990) (quoting Perry, 460 U.S. at 46).
"Control over access to nonpublic forums can be based on subject matter
and speaker identity so long as the distinctions are reasonable in the light of
the purpose served by the forum and are viewpoint neutral." Cornelius, 473
U.S. at 806. Thus, in a nonpublic
forum, the state may restrict access if: (1) the restriction is reasonable; and
(2) the restriction is viewpoint neutral.
The
Commission claims that it denied the Klan's application because thirty-two
federal and state court cases, some dating back to the 1920s, have taken
judicial notice of the Klan's history of violence. Indeed, even the Supreme
Court recently chronicled the Klan's violent history in Virginia v. Black, 123
S. Ct. 1536 (2003). The Court stated that the Klan imposed "a veritable
reign of terror" throughout the South by "whipping, threatening to
burn people at the stake, and murder." Id. at 1544. The Court noted that
the "Klan used cross burnings as a tool of intimidation and a threat of
impending violence" and that violence was an elemental part of the Klan.
Id. at. 1545.
The Commission may refuse to grant the Klan's application to
adopt a section of Route 21 in Washington County, Missouri if the restriction
on speech is reasonable. The reasonableness of the state's restriction of
access to a nonpublic forum must be assessed "in the light of the purpose
of the forum and all surrounding circumstances." Cornelius, 473 U.S. at
809. A court should consider the forum's special attributes because the
significance of the government interest must be assessed in relation to the
characteristic nature and function of the nonpublic forum. Kokinda, 497 U.S. at
732.
According to its brief, the reason underlying the judicial
notice regulation is the Commission's concern about liability. The Commission
argues that allowing the Klan to participate in the Adopt-A-Highway program
could make it liable to others because the Commission is responsible for
dangerous conditions on the highway rights-of-way for which it has reasonable
notice. Interestingly, the Commission does not assert that the Klan wishes to
intimidate or threaten users of the highway system. Rather, the Commission
seems more concerned with the "Klan's response to taunts, jeers, or
insults hurled at the group by those who do not agree with its position."
The Commission argues that an injured person would have a cause of action
against the Commission.
[*1002] This argument is similar to that made by the Missouri
Department of Revenue ("the DOR") in Lewis v. Wilson, 253 F.3d 1077
(8th Cir. 2001). In Lewis, the DOR decided not to reissue a motorist a Missouri
license plate with the letters "ARYAN-1" because it was contrary to
public policy as set forth under a statute. Id. at 1078-79. The motorist filed
suit in federal court. The DOR asserted that the motorist's license plate could
be regulated because it was likely to provoke a violent response. Id. at 1081.
"According to the DOR, drivers who are exposed to the 'ARYAN-1' plate may
become angry, resulting in road rage and thus creating a traffic hazard."
Id.
While the Eighth Circuit did not disagree that road rage was a
conceivable consequence of the license plate, the court rejected the DOR's
attempt to censor the motorist's speech because of the potential responses of
other drivers. Id. at 1082. Without evidence that any motorist had
intentionally sought to provoke a violent reaction, the court stressed
"the mere possibility of a violent reaction to [the motorist]'s speech is
simply not a constitutional basis on which to restrict her right to
speak." Id. at 1081. This "argument amounts to little more than the
self-defeating proposition that to avoid physical censorship of one who has not
sought to provoke such a response by a hypothetical coterie of the violent and
lawless, the States may more appropriately effectuate that censorship
themselves." Id. at 1081-82 (quoting
Cohen, 403 U.S. 15 at 23, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971)).
I find Lewis to be instructive in this case. The Commission has offered no
evidence to show that the Klan has intentionally sought to elicit a violent
response or has directed at a particular individual so-called "fighting
words." Unlike in State of Texas v. Knights of the Ku Klux Klan, there is
no allegation that the Klan is attempting to intimidate certain people or
interfere with the compliance of a court order. In addition, the summary
judgment evidence does not support a finding that residents of the area would
be reluctant to use Highway 21 or would provoke a violent response from the
Klan, even if the Klan were present gathering trash.
Moreover, the Commission's
fear of liability is undermined by the indemnity provision found in the
regulations. If allowed to adopt a highway, the Klan would have to agree to
indemnify the Commission from any claim,
lawsuit, or liability which may arise from its participation in the
Adopt-A-Highway program. Therefore, the Commission's concerns are unfounded.
Instead, they only serve to add credibility to the Klan's pretext argument. The
Klan's contention that the judicial notice regulation is simply a pretext to
prevent its participation in the program is also bolstered by the fact that no
other organization's application has been denied based upon this regulation.
While I do not disagree that some users of the state highway
system may voice their displeasure with the Klan and its unfortunate views of
racial superiority, it is unconstitutional to deny its application based on
what hypothetically might occur when the Klan is picking up trash. Even if I
assume that the Commission made no judgment about the viewpoint of the Klan's
speech -- although there is evidence that suggests the Klan's views were
considered -- the Klan's application cannot be denied for this reason
alone. The First Amendment "knows
no heckler's veto." Lewis, 253 F.3d at 1082.
Based on
the undisputed evidence, I find that the judicial notice regulation, as applied
to the Klan, is not reasonable in light of the purpose of the Adopt-A Highway
program, which is to reduce litter along the highways and beautify Missouri's
roadsides. [*1003] The Klan's expressive speech of picking up trash along a
highway right-of-way cannot be trumped because some people may disagree with
its beliefs and advocacy, especially when the Klan agrees to indemnify the
Commission. Even "those with viewpoints as thoroughly obnoxious as those
of the Klan" are entitled to First Amendment protection. See Cuffley, 208
F.3d at 711.
For the above reasons, I will grant the Klan's motion for
summary judgment and enter a declaratory judgment in its favor.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs' motion for summary
judgment [ # 35] is granted.
IT IS FURTHER ORDERED that defendants' motion for summary
judgment [ # 39] is denied.
A separate declaratory judgment in accord with this Memorandum
and Order is entered this same date.
/S/
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 10th day of
September, 2003.
DECLARATORY JUDGMENT
In accordance with the Memorandum and Order entered this same
date,
IT IS HEREBY ORDERED, AJDUDGED, and DECREED that plaintiffs
shall have summary judgment.
IT IS FURTHER DECLARED that defendants are hereby enjoined from
denying the application of the Knights of the Ku Klux Klan, Realm of Missouri,
Unit 188, to participate in the Adopt-A-Highway program on the basis of Mo.
Code Reg. Ann. tit. 7, § 10-14.030.
/s/
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 10th day of
September, 2003.
FOOTNOTES:
n1 The
Court of Appeals had dismissed an earlier action for lack of ripeness because
the state had not, at that time, denied the Klan's first application. See
Missouri ex rel. Missouri Highway and Transp. Comm'n v. Cuffley, 112 F.3d 1332
(8th Cir. 1997).