Hill v. Kemp

• Decision Date: 06 March 2007
• Docket Number: No. 05-5160.,05-5160.
• Citation: 478 F.3d 1236
• Parties: 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.
• Court: U.S. Court of Appeals — Tenth Circuit

478 F.3d 1236

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.

No. 05-5160.

United States Court of Appeals, Tenth Circuit.

March 6, 2007.

Suzanne M. Grosso (Molly S. Boast with her on the briefs), Debevoise & Plimpton, LLP, New York, New York; Priscilla J. Smith and Sanford M. Cohen, Center for Reproductive Rights, New York, New York; Martha M. Hardwick, Hardwick Law Office, Tulsa, Oklahoma, for Plaintiffs-Appellants.

Ernest H. Short, General Counsel (Douglas B. Allen and Cara S. Nicklas, Assistants General Counsel, with him on the brief), Oklahoma Tax Commission, Oklahoma City, Oklahoma, for Defendants-Appellees Thomas E. Kemp, Jerry Johnson, and Connie Irby.

Richard W. Freeman, Jr., Assistant General Counsel, Department of Human

Services, Oklahoma City, Oklahoma,(Kevin L. McClure, Assistant Attorney General, Oklahoma City, Oklahoma, with him on the briefs), for Defendants-Appellees Howard H. Hendrick, Scott Meacham, Brad Henry, and W.A. "Drew" Edmondson.

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 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 Families" plates).¹ 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,"² 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).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 associated with abortion activities, including counseling for or referral to abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising.").

While many license plates 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. Id. §§ 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 under this new law may be issued only after the Tax Commission has received 500 prepaid applications for the particular specialty plate at issue. Id. § 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. Id. § 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. Id. § 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...