Cressman v. Thompson

• Decision Date: 12 June 2013
• Docket Number: No. 12–6151.,12–6151.
• Citation: 719 F.3d 1139
• Parties: Keith CRESSMAN, Plaintiff–Appellant, v. Michael C. THOMPSON, in his official capacity as Secretary of Safety and Security and as the Commissioner of Public Safety for the State of Oklahoma; Paula Allen, individually and in her official capacity as Licensing Services Hearing Officer for the Oklahoma Department of Public Safety; Thomas Kemp, Jr., in his official capacity as Chairman of the Oklahoma Tax Commission; Jerry Johnson, in his official capacity as Vice Chairman of the Oklahoma Tax Commission; Dawn Cash, in her official capacity as Secretary Member of the Oklahoma Tax Commission; Kerry Pettingill, in his official capacity as Chief of the Oklahoma Highway Patrol, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

719 F.3d 1139

Keith CRESSMAN, Plaintiff–Appellant,

v.Michael C. THOMPSON, in his official capacity as Secretary of Safety and Security and as the Commissioner of Public Safety for the State of Oklahoma; Paula Allen, individually and in her official capacity as Licensing Services Hearing Officer for the Oklahoma Department of Public Safety; Thomas Kemp, Jr., in his official capacity as Chairman of the Oklahoma Tax Commission; Jerry Johnson, in his official capacity as Vice Chairman of the Oklahoma Tax Commission; Dawn Cash, in her official capacity as Secretary Member of the Oklahoma Tax Commission; Kerry Pettingill, in his official capacity as Chief of the Oklahoma Highway Patrol, Defendants–Appellees.

No. 12–6151.

United States Court of Appeals,Tenth Circuit.

June 12, 2013.

Nathan W. Kellum, Center for Religious Expression, Memphis, TN (Jonathan A. Scruggs, Alliance Defending Freedom, Memphis, TN, with him on the briefs), appearing for Appellant.

Kevin McClure, Assistant Attorney General, Office of Attorney General, Litigation Division, Oklahoma City, OK (Larry Patton, Senior Assistant General Counsel, and Meredith W. Wolfe, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, OK, with him on the brief), appearing for Appellees.

Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.

ORDER

Due to a clerical error, the Opinion issued in this matter yesterday did not include a planned dissent. Consequently, the decision filed is vacated, and the clerk is instructed to reissue the Opinion, to include the dissent, and to reissue the judgment with today's date. A copy of the Opinion with the dissent is attached to this order.

MATHESON, Circuit Judge.

This appeal concerns an IMAGE

PAUL KELLY, JR., Circuit Judge, dissenting.

In 2009, Oklahoma changed its standard-issue license plate to incorporate a representation of Allan Houser's “Sacred Rain Arrow,” on permanent display at Tulsa's Thomas Gilcrease Institute of American History and Art.¹ Though awarded the Automobile License Plate Collectors Association's best plate of the year award for 2009,² Mr. Cressman considers his display of the image on the license plate to be compelled speech. The district court disagreed.

This court concludes that Mr. Cressman has stated a claim because the complaint “plausibly ties the license plate image to a specific sculpture that conveys a specific message,” which according to Mr. Cressman, others are likely to perceive. In my view, the complaint does not contain sufficient factual allegations “to raise [the] right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Mr. Cressman has connected the image on Oklahoma's license plate to the sculptureand that sculpture to a Native American legend. He asserts that the license plate promotes “pantheism, panentheism, polytheism, and/or animism,” all of which are antithetical to his religious beliefs. Doc. 1 at 6, ¶ 25–26. However, he has not alleged facts from which we can reasonably infer that others are likely to make the same series of connections.

This is especially so when the image is considered in context. See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”). Native American culture is an integral part of the history of Oklahoma and the United States. Indeed, the name “Oklahoma” comes from two Choctaw words meaning “red people.” ³ Oklahoma has decided to acknowledge its history by portraying a Native American cultural image on its license plate and promoting “Native America.” Without more, Mr. Cressman's allegation that others are likely to perceive an ideological message based upon the image—as opposed to a historical or cultural message—lacks facial plausibility.

As the court notes, we need not address the scope of protection afforded to non-ideological speech because Mr. Cressman alleges that the license plate's message is ideological. Therefore, he must satisfactorily allege that others are likely to perceive the image as communicating an ideological message; of course, whether others agree or disagree with the message is not relevant. See Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). This he has not done and we are not required to accept unreasonable inferences. See Moss v. U.S. Secret Serv., 572 F.3d 962, 971 (9th Cir.2009). Mr. Cressman's assertion that he is being forced “to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable” is built entirely on speculation. Wooley, 430 U.S. at 715, 97 S.Ct. 1428.

Moreover, the compelled speech doctrine never was intended to displace governmental choices in favor of complete personal autonomy. Otherwise, aesthetics-based challenges would not be far away. Suppose one objected to the selection of a particular artist's work or a certain color scheme? No one would suggest a First Amendment right to override the choices made by the state on these grounds.

Because I conclude that Mr. Cressman has failed to nudge his complaint across the line from possible to plausible, seeIqbal, 556 U.S. at 678, 129 S.Ct. 1937, I respectfully dissent. I would affirm the district court's order dismissing Mr. Cressman's complaint.

1. We include a copy of the license plate at the end of this opinion.

2. As previously noted, at this stage we accept Mr. Cressman's factual allegations as true. But we also note that the Defendants, without expressly admitting that the image is based on the “Sacred Rain Arrow” sculpture, state that the license plate image “is a modified version of the sculpture that sits outside the Gilcrease Museum in Tulsa, Oklahoma.” Aplee. Br. at 7. They further refer this court to a web site featuring a picture of the museum sculpture. The web site confirms it is the “Sacred Rain Arrow” sculpture. See id. (citing to http:// gilcrease. utulsa. edu/ Learn/ Speaking– of– Gilcrease/ The– Gardens– at– Gilcrease).

3. We doubt that Section 4–107 prohibits Mr. Cressman from covering up the image. The only portion of Section 4–107 that is relevant to license plates is subsection (d), which states: “A person who removes a license plate from a vehicle or affixes to a vehicle a license plate not authorized by law for use on said vehicle with intent to conceal or misrepresent the identity of the vehicle or its owner shall, upon conviction, be guilty of a misdemeanor.” Okla. Stat. tit. 22, § 4–107(d). Mr. Cressman did not ask Ms. Allen whether he could remove his license plate to conceal the identity of his vehicle, so Section 4–107 does not seem to apply.

Accordingly, Mr. Cressman focuses on Section 1113. We do the same throughout this opinion.

4. We refer to Defendants Allen, Thompson, and Pettingill collectively as the “Public Safety Defendants,” and to the other defendants as the “Tax Commission Defendants.” We refer to all six collectively as the “Defendants.”

5. Mr. Cressman also asserted a violation of the Oklahoma Religious Freedom Act, Okla. Stat. tit. 51, § 251 et seq.

6. The court declined to exercise supplemental jurisdiction over the Oklahoma Religious Freedom Act claim and dismissed it without prejudice.

7. The district court also denied Mr. Cressman's request for a preliminary injunction. This ruling did not rely on facts outside the complaint and turned on Mr. Cressman's failure to state a compelled speech claim. Accordingly, the district court's denial of his motion for a preliminary injunction rests on a legal determination, which we review de novo. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003).

8. Whether the Defendants have enforcement authority is related to whether, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), they are proper state officials for suit. The Defendants raise Ex parte Young as part of their Article III standing analysis, although Ex parte Young concerns sovereign immunity.

Under Ex parte Young, a plaintiff may avoid the Eleventh Amendment's prohibition on suits against states in federal court by seeking to enjoin a state official from enforcing an unconstitutional statute. Id. at 157, 28 S.Ct. 441. The plaintiff must be “(1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir.2012). In addition, the named state official “must have some connection with the enforcement ” of the challenged statute. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441 (emphasis added). This language does not require that the state official “have a ‘special connection’ to the unconstitutional act or conduct,” but rather that the state official “have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir.2007) (quoting Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441).

As the Ninth Circuit has explained, there is a common thread between Article III standing analysis and Ex parte Young analysis:

Whether [state] officials are, in their official capacities, proper defendants in [a] suit is really the common denominator of two separate inquiries: first, whether there is the requisite causal connection between their responsibilities and any injury that the plaintiffs might suffer, such that relief against the defendants would provide redress [i.e., Article III standing]; and second, whether ... jurisdiction over the defendants is proper under the doctrine of Ex parte Young, which requires “some connection” between a named state officer and enforcement of a challenged state law.

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