Roach v. Stouffer, 08-1429.

• Decision Date: 26 March 2009
• Docket Number: No. 08-1429.,08-1429.
• Parties: Kevin M. ROACH; Choose Life of Missouri, Inc., Appellees, v. Bill STOUFFER, Defendant, Karen King Mitchell,<SMALL><SUP>1</SUP></SMALL> Appellant, Matt Bartle; John Griesheimer; Delbert Scott; Frank Barnitz; Joan Bray; Rita Heard Days; Neal St. Onge; Charlie Schlottach; Lanie Black; Mike Daus; Wayne Henke, in their official capacity as members of the Joint Committee on Transportation Oversight; Terry Young, in her official capacity as Director of the Missouri Department of Revenue; Charlie Denison, in his official capacity as a member of the Joint Committee on Transportation Oversight, Defendants. Eagle Forum Education and Legal Defense Fund; Law Students Pro-Life at Washington University in St. Louis School of Law; Students for Life; Life Choice Center for Women; Life-Choices Medical Clinic and Resource Center; Lifeline Pregnancy Resource Center; Open Arms Pregnancy Resource Center; Options Pregnancy Clinic; Pregnancy Care Center; Thrive St. Louis; Pregnancy Care Centers; Pregnancy Support Center, The National Legal Foundation, Not Party-Amici on Behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

560 F.3d 860

Kevin M. ROACH; Choose Life of Missouri, Inc., Appellees, v. Bill STOUFFER, Defendant, Karen King Mitchell,¹ Appellant, Matt Bartle; John Griesheimer; Delbert Scott; Frank Barnitz; Joan Bray; Rita Heard Days; Neal St. Onge; Charlie Schlottach; Lanie Black; Mike Daus; Wayne Henke, in their official capacity as members of the Joint Committee on Transportation Oversight; Terry Young, in her official capacity as Director of the Missouri Department of Revenue; Charlie Denison, in his official capacity as a member of the Joint Committee on Transportation Oversight, Defendants.

Eagle Forum Education and Legal Defense Fund; Law Students Pro-Life at Washington University in St. Louis School of Law; Students for Life; Life Choice Center for Women; Life-Choices Medical Clinic and Resource Center; Lifeline Pregnancy Resource Center; Open Arms Pregnancy Resource Center; Options Pregnancy Clinic; Pregnancy Care Center; Thrive St. Louis; Pregnancy Care Centers; Pregnancy Support Center, The National Legal Foundation, Not Party-Amici on Behalf of Appellee.

No. 08-1429.

United States Court of Appeals, Eighth Circuit.

Submitted: October 16, 2008.

Filed: March 26, 2009.

Joel E. Anderson, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., on the brief), for appellant.

Joel Lee Oster, Leawood, KS, argued (Kevin Theriot and Benjamin W. Bull, Scottsdale, AZ, on the brief), for appellees.

Andrew Schlafly, Far Hills, NJ (Eagle Forum Education & Legal Defense Fund, Law Students Pro-Life at Washington University in St. Louis School Law, and Students for Life at Saint Louis University), Steven W. Fitschen, of Virginia Beach, VA (The National Legal Foundation) and Mailee R. Smith, and Denise M. Burke, of Chicago, IL (Life Choice Center for Women, et al.), for amici briefs in support of appellees.

Before GRUENDER, BEAM and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

Choose Life of Missouri, Inc. is a nonprofit Missouri corporation. Kevin Roach is the founder, president, and chairman of the board of directors of Choose Life of Missouri, Inc. Choose Life and Roach (collectively, "Choose Life") filed suit against Karen King Mitchell, Director of the Missouri Department of Revenue ("DOR"), in her official capacity, and against the members of the Joint Committee on Transportation Oversight ("Joint Committee") in their official capacities (collectively, "appellants") after the Joint Committee denied Choose Life's application to obtain a specialty license plate. The district court² granted summary judgment to Choose Life, declared section 21.795(6) of the Missouri Revised Statutes to be unconstitutional, and entered an injunction requiring Mitchell to issue Choose Life's specialty license plate. The appellants appeal, and for the reasons discussed below, we affirm.

I. BACKGROUND

The State of Missouri permits drivers to obtain "specialty" license plates for a fee in addition to the ordinary registration fee. Like regular license plates, specialty plates contain a combination of identifying letters and numbers. However, specialty plates contain a specific message or symbol from a sponsoring organization that replaces the state moniker "Show Me State."

Missouri law provides for two methods to create a specialty plate. First, the Missouri Legislature can pass a bill that creates a specialty plate. Approximately seventy specialty plates have been created by the Missouri Legislature for organizations such as the March of Dimes, the Missouri Civil War Reenactors Association, and the Missouri Society of Professional Engineers. See, e.g., Mo.Rev.Stat. § 301.3032.3148. Second, private organizations can apply to the DOR for a specialty plate. Mo.Rev.Stat. § 301.3150. Section 301.3150 sets out the requirements and administrative procedures for an application to the DOR.

1. An organization ... that seeks authorization to establish a new specialty license plate shall initially petition the department of revenue by submitting the following:

(1) An application in a form prescribed by the director for the particular specialty license plate being sought, describing the proposed specialty plate in general terms and have a sponsor of at least one current member of the general assembly. The application may contain written testimony for support of this specialty plate;

(2) Each application submitted pursuant to this section shall be accompanied by a list of at least two hundred potential applicants who plan to purchase the specialty plate if the specialty plate is approved pursuant to this section; [and]

(3) An application fee, not to exceed five thousand dollars, to defray the department's cost for issuing, developing and programming the implementation of the specialty plate, if authorized;

....

7. The department of revenue shall submit for approval all applications for the development of specialty plates to the joint committee on transportation oversight during a regular session of the general assembly for approval.

8. If the specialty license plate requested by an organization is approved by the joint committee on transportation oversight, the organization shall submit the proposed art design for the specialty license plate to the department as soon as practicable, but no later than sixty days after the approval of the specialty license plate.

Id. Meanwhile, section 21.795(6) governs the Joint Committee's process for approving or denying the specialty plate applications.

The [Joint Committee] shall also review for approval or denial all applications for the development of specialty license plates submitted to it by the department of revenue. The committee shall approve such application by a unanimous vote. The committee shall not approve any application if the committee receives a signed petition from five house members or two senators that they are opposed to the approval of the proposed license plate. The committee shall notify the director of the department of revenue upon approval or denial of an application for the development of a specialty plate.

Mo.Rev.Stat. § 21.795(6). If an application is denied, the organization can make a request to the Joint Committee for a "review" of the Joint Committee's determination within fifteen days of receiving the notice of denial. Mo.Rev.Stat. § 301.3152. Specialty plates for groups such as the Missouri Hospice Organization, Ethan and Friends for Autism, and Missouri's Cattlemen Foundation have been approved and produced using this process. A vehicle owner who wishes to obtain a specialty plate must pay the State of Missouri a fifteen dollar fee in addition to the normal license plate registration fee and comply with the requirements of the sponsoring organization, which often include a required donation to the organization.

Using the second method, Choose Life submitted an application to the DOR for a "Choose Life" specialty license plate and fully complied with the requirements listed in section 301.3150. Missouri State Senators Joan Bray and Rita Heard Days, both of whom describe themselves as "pro-choice" and both of whom are members of the Joint Committee, submitted a letter to the Chair of the Joint Committee opposing the "Choose Life" specialty plates. Accordingly, the Joint Committee denied the application. Choose Life requested a review of the Joint Committee's decision under section 301.3152. The Joint Committee again rejected the application.

Choose Life filed suit, arguing that the Joint Committee's denial of the "Choose Life" specialty plate violated its rights to free speech, due process and equal protection under the United States Constitution and its right to free speech under the Missouri Constitution. Choose Life sought a permanent injunction requiring Mitchell to issue the "Choose Life" specialty plate. Choose Life also sought a declaratory judgment that the specialty license plate statutory scheme was unconstitutional because it gave Missouri officials unbridled discretion to restrict private speech and that the Joint Committee acted unconstitutionally by denying the "Choose Life" specialty plates. Both parties moved for summary judgment. The district court denied the appellants' motion and granted Choose Life's motion. The district court held that the specialty plates constituted private speech and that the statutory scheme lacked adequate guidelines to prevent viewpoint discrimination by the state because "there is unbridled discretion given to the government official(s) in deciding to approve or deny a specialty license plate." The court thus struck down section 21.795(6) as unconstitutionally overbroad and entered an injunction requiring Mitchell to issue the "Choose Life" specialty plates.

The appellants appeal, arguing that the district court erred by denying the appellants' motion for summary judgment, by granting Choose Life's motion for summary judgment, and by entering the permanent injunction.

II. DISCUSSION

We review a grant of summary judgment de novo. Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1156 (8th Cir.2008). We review the entry of a permanent injunction for an abuse of discretion. Kennedy Bldg. Assocs. v. CBS Corp., 476 F.3d 530, 533 (8th Cir.2007). "A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact." Id. at 534.

To determine whether Missouri's specialty license plate scheme survives a First Amendment challenge, we must first decide whether the messages contained on specialty plates communicate government or private speech. The appellants argue that the messages on specialty plates are government speech that need not be viewpoint neutral. As the Supreme Court recently noted, "[t]he Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to `speak for itself.' `[I]t is entitled to say what it wishes,' and to select the views that...