Cressman v. Thompson

• Decision Date: 16 May 2012
• Docket Number: No. CIV–11–1290–HE.,CIV–11–1290–HE.
• Citation: 871 F.Supp.2d 1176
• 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.
• Court: U.S. District Court — Western District of Oklahoma

871 F.Supp.2d 1176

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.

No. CIV–11–1290–HE.

United States District Court, W.D. Oklahoma.

May 16, 2012.

Jonathan A. Scruggs, Nathan W. Kellum, Alliance Defense Fund, Memphis, TN, Kelsey D. Dulin, Dulin Law Firm PLLC, Oklahoma City, OK, Steven Lewis, Steven Lewis PLLC, Edmond, OK, for Plaintiff.

Larry D. Patton, Meredith W. Wolfe, Oklahoma Tax Commission, Kevin L. McClure, Attorney General's Ofc., Oklahoma City, OK, for Defendants.

ORDER

JOE HEATON, District Judge.

Plaintiff Keith Cressman filed this action pursuant to 42 U.S.C. §§ 1983, 1988 and 51 Okla. Stat. § 251 against Michael C. Thompson, Secretary of Safety and Security and the Commissioner of Public Safety for the State of Oklahoma, Paula Allen, a licensing services hearing officer with the Oklahoma Department of Public Safety, Thomas Kemp Jr., Jerry Johnson, and Dawn Cash, Chairman, Vice–Chairmen and Secretary-member of the Oklahoma Tax Commission, and Kerry Pettingill, Chief of the Oklahoma Highway Patrol. ¹ Plaintiff challenges Oklahoma statutes which prohibit him from covering the image on the standard passenger vehicle license plate of a Native American shooting an arrow, which he alleges to be repugnant to his religious beliefs.

In his first amended complaint plaintiff alleges defendants have deprived him of his First ² and Fourteenth Amendment rights and his rights under the Oklahoma Religious Freedom Act (“RFA”). He seeks injunctive and declaratory relief and nominal damages. Along with his complaint, plaintiff filed a motion seeking a preliminary injunction. Defendants have filed motions to dismiss, arguing, among other things, that plaintiff lacks standing and that the complaint fails to state a claim upon which relief can be granted. The various motions are fully briefed and at issue. The court concludes plaintiff's motion should be denied, the motion of defendants Thompson and Allen granted, and the case dismissed.³

Background

In this action plaintiff is challenging 47 Okla. Stat. § 4–107⁴ and § 1113⁵ because, he asserts, they “compel him to speak and express on his car license plate a message that is contrary to his sincerely held religious beliefs.” Plaintiff's brief, p. 1.⁶ His claims are based on the alleged effects of an image he alleges to be based on a sculpture called “Sacred Rain Arrow.” The image appears on the State of Oklahoma's standard vehicle license plates.⁷As described by plaintiff, the sculpture “depicts a young Native American shooting an arrow towards the sky with the hope of calling for rain from the ‘spirit world.’ ” First Amended Complaint, ¶ 19. It is based, plaintiff states, on a Native American legend in which a warrior went to a medicine man during a drought, convinced him to bless his bow and arrows and then shot his arrows into the sky, hoping to gain favor with the rain god. Plaintiff asserts that “the image depict[s] and communicate [s] Native American religious beliefs in contradiction to his own Christian religious beliefs.” Id. at ¶ 21. Because the “message, connotation and purpose” of the sculpture and the license plate with its image are “antithetical to Cressman's sincerely-held religious beliefs,” plaintiff alleges he cannot display the image on his vehicle. Id. at ¶ 26. He “wants to remain silent with “images, messages, and practices that he cannot endorse or accept,” id. at ¶ 27, and does not want his car to serve as a billboard for them.

While he originally purchased a specialty license plate to avoid displaying the “standard license plate with the objectionable message,” plaintiff states he decided he did not want to continue to pay extra to “avoid expressing a message contrary to his religious beliefs.” Id. at ¶¶ 28, 29. On December 7, 2009, he went to the Motor Vehicle Division of the Oklahoma Tax Commission to determine if he could cover up the image of the sculpture on his license plate without violating state law. He alleges he spoke with a clerk and explained his religious objections to the image on the license plate. The clerk told plaintiff he would probably get a ticket but suggested he check with the enforcing officer at the Department of Public Safety (“DPS”). Plaintiff then proceeded to DPS and spoke with defendant Paula Allen, an official alleged to be “in charge of interpreting policies for the Department of Public Safety.” Id. at ¶ 31. He again explained his religious objections, asked if he could cover the image of the sculpture on his license tag without violating the law and asked, if such action was illegal, what law he would be violating. Ms. Allen directed plaintiff to 47 Okla. Stat. § 4–107, which, she stated, prohibited the concealment of any portion of the license plate, tag or frame. With plaintiff present, Ms. Allen called an official with the Highway Patrol, who confirmed that plaintiff would be subject to prosecution if he covered the image of the sculpture on the license plate.

According to the complaint, after he left DPS plaintiff reviewed 47 Okla. Stat §§ 4–107 and 1113 and concluded he could not conceal the Native American image without violating the law and subjecting himself to criminal sanctions. Plaintiff alleges that to comply with the law and “avoid endorsing a message contrary to [his] religious beliefs,” he is “being forced to pay fees for a specialty license plate.” Id. at ¶ 42. In an effort to avoid litigation plaintiff, through counsel, wrote several state officials, explaining his objection to the Native American image and asking that he be permitted to cover it up or obtain a free vanity plate. He alleges no one responded.

Plaintiff asserts that, “[d]ue to the steadfast stance of Oklahoma officials, [he] must either pay extra amounts of money for a speciality plate, subject himself to criminal penalties, or go against his conscience.” Plaintiff's brief, p. 6. He states that he simply wants to be treated like all other Oklahoma citizens and be allowed to “display a license plate at a standard cost without expressing a message contrary to his earnest religious beliefs.” Id. He asks the court to enjoin defendants Thompson and Allen and their agents and employees from applying 47 Okla. Stat. § 4–107 or § 1113 to him and to order them to allow him to cover up the Native American image on his license plate. Alternatively, he asks the court to compel defendants and their agents and employees to provide him with a vanity license plate for the same price as a standard license plate.

Standing

Before the court addresses the merits of plaintiff's motion for injunctive relief, it must consider defendants' argument that plaintiff lacks standing.⁸ “The Supreme Court's ‘standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, ... and prudential standing which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.’ ” Wilderness Soc'y v. Kane Cnty., 632 F.3d 1162, 1168 (10th Cir.2011) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004)). This case presents a question of Article III standing, which, to establish, a plaintiff must show “(1) that he or she has ‘suffered an injury in fact;’ (2) that the injury is ‘fairly traceable to the challenged action of the defendant;’ and, (3) that it is ‘likely’ that ‘the injury will be redressed by a favorable decision.’ ” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir.2012) (quoting Ariz. Christian Sch. Tuition Org. v. Winn, ––– U.S. ––––, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011)).

Plaintiff's allegations suffice to establish standing to pursue this case. Plaintiff alleges he has had to incur the additional expense of purchasing a specialty license plate to avoid driving a vehicle with a tag bearing what he considers to be an objectionable image. Also, while he has not been arrested, plaintiff has been informed by state officials that covering up the image is a violation of Oklahoma law, specifically 47 Okla. Stat. § 4–107. See Consumer Data Indus. Ass'n v. King, 678 F.3d 898, 902 (10th Cir.2012) (“[T]he existence of a statute implies the threat of its enforcement, and the association was entitled to bring a pre-enforcement challenge based on the probability of future injury.”). He has shown that he was unable to obtain a waiver of § 4–107's enforcement from the State, his injuries are traceable to the enforcement of state law,⁹ and a favorable judgment from this court would redress his injuries. See id. (complete redressability not required); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1028–29 (10th Cir.2008).¹⁰

Preliminary Injunction

To prevail on his motion for a preliminary injunction, plaintiff “must show that four factors weigh in his favor: ‘(1) [he] is substantially likely to succeed on the merits; (2) [he] will suffer irreparable injury if the injunction is denied; (3) [his] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.’ ” Awad, 670 F.3d at 1125 (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir.2009)).¹¹ Plaintiff claims he is likely to succeed on the merits of his First Amendment claim because 47 Okla. Stat. § 4–107 and 1113 “require him to express an objectionable message from his car license plate while his conscience requires him to do otherwise.” Plaintiff's brief, p. 7. He asserts that the government cannot compel the speech of private citizens and that he satisfies the three components of a compelled speech claim, which he identifies as—private speech; ¹² compelled speech; and that the speaker's interest in remaining silent outweighs the government's interest in compelling the speech.¹³ While the...