Cressman v. Thompson
| Decision Date | 31 December 2013 |
| Docket Number | NO. CIV-11-1290-HE,CIV-11-1290-HE |
| Court | U.S. District Court — Western District of Oklahoma |
| Parties | KEITH CRESSMAN, Plaintiff, v. MICHAEL C. THOMPSON, in his official capacity as Secretary of State and Security and as the Commissioner of Public Safety for the State of Oklahoma, et al., Defendants. |
In this case, plaintiff Keith Cressman has sued various officials of the Oklahoma Department of Public Safety (the "DPS defendants") and the Oklahoma Tax Commission ("the OTC defendants") in their official capacities,1 alleging a § 1983 claim for violation of his constitutional rights. He principally seeks to enjoin the enforcement of 47 Okla. Stat. § 1113 as to him,2 arguing that he faces prosecution for violation of that statute if he covers the image depicted on the state's standard automobile license plate.
The image at issue is that of a Native American shooting a bow and arrow, which has appeared on the standard Oklahoma license plate since January 2009. Plaintiff asserts that the image communicates a religious message contrary to his own Christian religious beliefs,in violation of his First Amendment rights against compelled speech. Specifically, he alleges that the image on the license plate:
First Amended Complaint ].
In earlier proceedings, this court denied plaintiff's request for a preliminary injunction and dismissed the case, concluding that the complaint failed to state a claim upon which relief could be granted. Cressman v. Thompson, 871 F. Supp. 2d 1176 (W.D. Okla. 2012). On appeal to the Tenth Circuit Court of Appeals, that court reversed, concluding that a claim was stated, and remanded the case for further proceedings. Cressman v. Thompson, 719 F.3d 1139, 1142-43 (10th Cir. 2013). As part of the further proceedings after remand, plaintiff renewed his request for a preliminary injunction. The court combined the hearing on that request with trial on the merits, which is now set for January 9, 2014. In the meantime, plaintiff, the DPS defendants, and the OTC defendants have filed motions for summary judgment. Those motions are now at issue.
The bulk of the background facts are substantially undisputed. In 2007, the Oklahoma legislature established a task force to study and choose a new design for the official Oklahoma license plate. 47 Okla. Stat. § 1113.3. The task force selection was to becommunicated to the Oklahoma Tax Commission which, contingent on statutory authorization, was directed to use the new design on plates issued thereafter. Id.
The task force considered a number of designs, including two which included images based on a sculpture made by Allen Houser, an Oklahoma-born artist considered one of the foremost sculptors of the twentieth century. Houser's sculpture is entitled the "Sacred Rain Arrow" and is located at the Gilcrease Museum in Tulsa, Oklahoma.3 The plate design ultimately selected included an image very similar to, but not identical to, the "Sacred Rain Arrow" sculpture.4 The image was placed on the left side of the standard Oklahoma license plate. [Doc. #95-6] is a copy of the standard plate and is attached to this opinion.
In August 2008, plaintiff saw an online article in the Tulsa World describing the Oklahoma Tax Commission's announcement of the new tag design. The OTC announcement was that "the new plate features the Sacred Rain Arrow sculpture by Oklahoma artist Allen Houser . . . ." Based on that news story and others he read, which included descriptions of the background of the statue and Houser's explanation of it, plaintiff indicates he was immediately offended by the prospect of having the image on his vehicle.5
Plaintiff has had specialty plates on his personal vehicles for some time, including times prior to the adoption of the new plate design. He purchased a vehicle in 2009 that, for a time, displayed a standard plate but later got a specialty plate for it. By December 2009, plaintiff had concluded that he did not want to pay for a specialty plate any longer. Plaintiff's evidence indicates he contacted Tax Commission and DPS personnel about his concerns with the plate and image, inquiring as to whether he could cover up the subject image on the plate.6 According to him, he was told that it appeared he could not legally cover the image and would be subject to prosecution if he did.7 Later, through counsel, plaintiff contacted the state attorney general's office seeking authorization to cover up the image, but received no response to that letter. This lawsuit followed.
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In evaluating a motion, the court views the evidence and any reasonable inferences that might be drawn from it in the light most favorable to the nonmoving party. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003). The question iswhether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Jeffries v. Kansas, 147 F.3d 1220, 1228 (10th Cir. 1998) (internal quotations omitted).
The defendants' motions for summary judgment will be addressed first. For the most part, the defendants do not address the substantive merits of plaintiff's claim, but rely on procedural or other defenses.
The OPS defendants argue that plaintiff lacks Article III standing to assert the present claims. They previously raised essentially the same argument both in this court and with the Court of Appeals. Both courts rejected the challenge. See Cressman, 871 F. Supp. 2d at 1180 and 719 F.3d at 1144-45. It is unclear whether defendants are now simply preserving their position in some fashion or whether they suggest there is some basis for avoiding, in the present procedural posture, the impact of those prior decisions.8 However, the factual matters addressed in defendants' motion do not appear to undercut the basis for the standing determination previously made. Accordingly, there is no apparent basis for now concluding that plaintiff lacks standing to pursue the claims he asserts.
The OPS defendants argue that the image on the license plate, if it is speech at all,9is government speech rather than private speech and hence may not be the basis for a First Amendment claim in plaintiff's favor. The court is at a loss to understand why defendants continue to devote significant time and argument to this issue. The argument is precluded by the decision of the U. S. Supreme Court in Wooley v. Maynard, 430 U.S. 705 (1977). That decision may very well be inconsistent with later First Amendment cases decided by the Court and some aspects of its reasoning seem particularly questionable in light of those cases.10 But all that is quite beside the point. As this court and the Tenth Circuit both noted, the Supreme Court has not repudiated Wooley and it is not clear that it would do so if presented with the issue. And even if this court were not already of that mind, the fact that the Tenth Circuit has now reached the same conclusion makes that conclusion the law of the case.11 Bottom line, the Supreme Court has determined that a message conveyed via a standard state license plate can be the basis for a First Amendment compelled speech claim if the appropriate circumstances are otherwise present. Defendants' "government speech"argument fails as a basis for summary judgment.
The OPS defendants also raise various arguments that seem to assume that plaintiff is asserting, in substance, a Free Exercise claim in the sense that the act, or potential act, of covering up the image on the plate is itself protected First Amendment expression. Plaintiff's response makes clear that is not the claim he is asserting. His First Amendment claim is a compelled speech claim, within the meaning of Wooley and other cases.12
The OTC defendants argue that the court lacks subject matter jurisdiction to consider plaintiff's claims against it, on the basis of the Tax Injunction Act (the "TIA"), 28 U.S.C. § 1341.13 That section provides:
The district courts shall not enjoin, suspend or restrain 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 TIA is jurisdictional. See Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1308-09 (10th Cir. 1999). It is designed to preclude undue interference by the federal judiciary in matters affecting the administration of state tax laws. Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 761 (10th Cir. 2010).
To the extent that plaintiff seeks an order from this court directing the OTC to issuea specialty plate to him without the additional charge applicable to specialty plates,14 the court concludes the TIA does deprive the court of jurisdiction to enter such an order. The Tenth Circuit has concluded that the primary purpose of Oklahoma's system for issuing specialty plates is raising revenue rather than regulation, and that the revenues constitute a "tax under State law" within the meaning of the TIA. Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007).15 As such, the exhaustion requirement of the TIA applies and plaintiff does not dispute defendants' contention that various means exist under state law for challenging the tax scheme. It is also undisputed that plaintiff has not pursued any of those...
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