Cressman v. Thompson, CIV-11-1290-HE
| Decision Date | 14 January 2014 |
| Docket Number | NO. CIV-11-1290-HE,CIV-11-1290-HE |
| 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 |
After remand from the Tenth Circuit Court of Appeals and further proceedings in this court,1 this case came on for non-jury trial and hearing on plaintiff's motion for preliminary injunction on January 9, 2014.2 The court heard testimony and received other evidence by stipulation/agreement. This order constitutes the findings and conclusions of the court with respect to the issues remaining for disposition. See Fed. R. Civ. P. 52.
Plaintiff Keith Cressman objects to the image displayed on standard Oklahoma license plates issued since 2009, arguing that the image conveys a religious message contrary to his own Christian religious beliefs. In this case, he 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. He has asserted four different claims asthe bases for declaratory, injunctive or other relief, all directed to him avoiding potential prosecution for violation of 47 Okla. Stat. § 1113. In pertinent part, § 1113 makes it illegal to operate a vehicle in Oklahoma upon which the license plate is "covered, overlaid, or otherwise screened with any material . . . ." § 1113(A)(2). While plaintiff does not focus on it, 47 Okla. Stat. § 1151(A)(2) also appears to apply to the conduct and circumstances of this case. That section makes it a misdemeanor for any person to, among other things, "alter or in any manner change a . . . license plate . . . issued under the laws of this . . . state." Plaintiff seeks to have the court enjoin the enforcement of § 1113 as to him or to otherwise protect plaintiff's constitutional rights. Specifically, he seeks an order that would permit him to cover, on any standard Oklahoma license plate issued to him, the image to which he objects or, alternatively, an order that would require the State of Oklahoma to issue specialty plates for his vehicles to him at no additional cost.
The court previously determined that the Tax Injunction Act ("TIA"), 28 U.S.C. § 1341, precludes this court, in the circumstances of this case, from ordering the issuance of a specialty tag at reduced cost to plaintiff. Order, December 31, 2013 [Doc. #111]. So the remaining question, from the standpoint of available relief, is whether the court should enjoin defendants from enforcing the indicated provisions of law against the plaintiff, in the event he covers the objected-to image in some fashion.
As noted above, plaintiff's amended complaint [Doc. #20] asserts four different claims. His central claim is that his First Amendment right against compelled speech is violated. He also asserts a Free Exercise claim and a Due Process claim, but conceded at thetrial/hearing that these purported claims were not separate from or different than his compelled speech claim. On that basis, the court concluded there was no Free Exercise or Due Process claim upon which plaintiff might recover.
The amended complaint also asserts a claim under the Oklahoma Religious Freedom Act, 51 Okla. Stat. § 251 et seq. Defendants object to that claim on the basis of Eleventh Amendment immunity. Plaintiff offered no persuasive basis for avoiding the impact of that immunity as to his state law claim, either by reason of Congressional abrogation of the immunity or due to waiver by the State, and the court concluded at the hearing that the Eleventh Amendment precluded any claim by plaintiff under the Oklahoma act. See generally Pettigrew v. Oklahoma, 722 F.3d 1209 (10th Cir. 2013).
Plaintiff's Free Speech (i.e. compelled speech) claim is based on plaintiff's contention that the image now on Oklahoma's standard license plate, which depicts a Native American man shooting a bow and arrow, conveys a message that is contrary to his religious beliefs as a Christian.3 He contends that being forced to display this image on his vehicle violates his right against compelled speech, as recognized in Wooley v. Maynard, 430 U. S. 705 (1977), and other cases. Defendants raised certain objections to the claim which were previously resolved by the court and will not be discussed further here.4 They also continue to press,in addition to the issues as to the substantive merit of the First Amendment claim, the argument that plaintiff has not shown a basis for standing based on the absence of actual or imminent prosecution of the plaintiff under the challenged statute(s).
The bulk of the background facts relating to the adoption of the current standard license plate, and of the "Sacred Rain Arrow" statue upon which the plate image was based, are undisputed. The parties entered into various stipulations in the Final Pretrial Report [Doc. #113] which the court adopts by reference. Other factual determinations are reflected below in the discussion of the court's conclusions as to the various remaining issues.
Defendants argue that plaintiff lacks standing to pursue these claims. They rely on evidence that plaintiff has extensively used specialty plates on his vehicles in the past and that he has not suffered injury in fact such as is necessary to the standing determination. See generally, Cressman, 719 F.3d at 1144-47. Further, the OTC defendants argued, as grounds for their Rule 52 motion, that there was no basis for a claim against them or justiciable controversy as to them as they had no role in enforcing the statute(s) the enforcement of which is still in issue.5
The court granted the OTC defendants' motion at the conclusion of plaintiff's evidence, on the basis that they had no role in enforcing the statute at issue.6 Absent sucha role, the elements of causation and redressability necessary to standing are missing and there is no basis for a judgment against these defendants even if plaintiff is otherwise successful as to the substance of his claim.
As to defendants' standing argument related to the claimed absence of injury in fact, the court concludes plaintiff made the necessary showing to establish standing. The Court of Appeals previously determined that plaintiff alleged facts which, if true, were sufficient to establish injury in fact for purposes of standing. Cressman, 719 F.3d at 1145. It noted he alleged he had been informed of potential prosecution and that there was a credible threat of prosecution. It further noted that compelled speech in violation of the First Amendment is injury in fact and that the additional cost of a specialty plate, as a means of avoiding prosecution, is a concrete monetary injury.
The court finds from the evidence offered that plaintiff does in fact object to the message he perceives to be communicated by the image, that he contacted personnel of the Oklahoma Tax Commission and the Department of Public Safety to explain his concern,7 thathe was advised that covering the image on the plate was illegal, that he further contacted the Attorney General in pursuit of his position, and that there is in a fact a reasonable prospect of prosecution if he covers the image on the plate. While the evidence established that plaintiff covered the image on one of his plates for a relatively short period of time without being prosecuted, that does not end the issue. A credible threat of prosecution, as opposed to actual prosecution, is sufficient for standing purposes. See Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003). Further, specialty license plates do, in fact, cost more than a standard plate. Hence there is some concrete monetary injury if plaintiff was forced to buy such plates to avoid a prosecution which arguably violated his constitutional rights. Plaintiff has established standing to pursue his compelled speech claim.
The substantive standards applicable to a compelled speech claim are set out more fully in this court's prior orders and the Tenth Circuit's order in this case. Briefly stated, the First Amendment protects not only a person's right to speak freely, but also the right to refrain from speaking at all. Board of Education v. Barnette, 319 U.S. 624, 633-34 (1943). That right potentially extends to being required to convey a message by means of a standard state-issued license plate on a person's vehicle. Wooley, 430 U.S. 705.
As this case, unlike Wooley, involves a challenge to an image on the tag, rather than words or speech, the question is whether the image on the plate is symbolic speech thatqualifies for First Amendment protection in this context.8 The Supreme Court has indicated that a symbolic act or display will be protected where it is sufficiently imbued with elements of communication to trigger First Amendment scrutiny. Spence v. Washington, 418 U.S. 405 (1974); Texas v. Johnson, 491 U.S. 397 (1989). The Spence-Johnson standard is ordinarily understood to require a showing that the act or symbol both (1) reflected an intent to convey a particularized message, and (2) there was a great likelihood that the message would be understood by those who viewed it. Cressman, 719 F.3d at 1149. In a compelled speech case, the intent element is deemed satisfied. Id. at 1154 n. 15.9
Later cases have suggested the Spence-Johnson requirement of a "particularized message" may not always be necessary, or at least should not be stringently applied. In Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995), referring to Spence, the Court stated that "a narrow, succinctly articulable message is not a condition of constitutional protection . . . ." The degree to which that conclusion modified the Spence-Johnson standard is not clear. The Tenth Circuit's opinion in this case did not decide that question, but did note the varying approaches of other courts of appeal. This...
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