Cuffley v. Mickes

• Decision Date: 11 January 2000
• Docket Number: Nos. 99-2334,CROSS-APPELLEES,99-2501,CROSS-APPELLANTS,s. 99-2334
• Citation: 208 F.3d 702
• Parties: (8th Cir. 2000) MICHAEL CUFFLEY; KNIGHTS OF THE KU KLUX KLAN, REALM OF MISSOURI, APPELLEES/, v. JOE MICKES, IN HIS OFFICIAL CAPACITY AS CHIEF ENGINEER OF THE MISSOURI DEPARTMENT OF TRANSPORTATION; STEPHEN KNOBBE, IN HIS OFFICIAL CAPACITY AS DISTRICT ENGINEER OF MISSOURI DEPARTMENT OF TRANSPORTATION, ST. LOUIS METRO DISTRICT; STACEY ANN ARMSTRONG, IN HER OFFICIAL CAPACITY AS ROADSIDE MANAGEMENT SUPERVISOR OF THE MISSOURI HIGHWAY AND TRANSPORTATION DEPARTMENT; THOMAS M. BOLAND; ROBERT E. JONES; EDWARD DOUGLAS; S. LEE KLING; JAMES W. GAMBLE; WILLIAM E. GLADDEN, IN THEIR OFFICIAL CAPACITIES AS COMMISSIONERS OF THE MO HIGHWAY AND TRANSPORTATION COMMISSION, APPELLANTS/ ARKANSAS STATE HIGHWAY COMMISSION; UNITED STATES OF AMERICA. AMICI ON BEHALF OF APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 702

208 F.3d 702 (8th Cir. 2000)

MICHAEL CUFFLEY; KNIGHTS OF THE KU KLUX KLAN, REALM OF MISSOURI, APPELLEES/CROSS-APPELLANTS, v. JOE MICKES, IN HIS OFFICIAL CAPACITY AS CHIEF ENGINEER OF THE MISSOURI DEPARTMENT OF TRANSPORTATION; STEPHEN KNOBBE, IN HIS OFFICIAL CAPACITY AS DISTRICT ENGINEER OF MISSOURI DEPARTMENT OF TRANSPORTATION, ST. LOUIS METRO DISTRICT; STACEY ANN ARMSTRONG, IN HER OFFICIAL CAPACITY AS ROADSIDE MANAGEMENT SUPERVISOR OF THE MISSOURI HIGHWAY AND TRANSPORTATION DEPARTMENT; THOMAS M. BOLAND; ROBERT E. JONES; EDWARD DOUGLAS; S. LEE KLING; JAMES W. GAMBLE; WILLIAM E. GLADDEN, IN THEIR OFFICIAL CAPACITIES AS COMMISSIONERS OF THE MO HIGHWAY AND TRANSPORTATION COMMISSION, APPELLANTS/CROSS-APPELLEES.

ARKANSAS STATE HIGHWAY COMMISSION; UNITED STATES OF AMERICA. AMICI ON BEHALF OF APPELLANT.

Nos. 99-2334, 99-2501

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2000

Filed: March 31, 2000

Appeal from the United States District Court for the Eastern District of Missouri.

Before Wollman, Chief Judge, Bowman, and Hansen, Circuit Judges.

Bowman, Circuit Judge.

The Knights of the Ku Klux Klan, Realm of Missouri, and Michael Cuffley in his capacity as its Unit Recruiter (collectively, the Klan) brought this action for injunctive and declaratory relief from the decision of the Missouri Highway and Transportation Commission (the State) to deny its application to participate in the State's Adopt-A-Highway program. On cross motions for summary judgment, the District Court¹ granted judgment for the Klan. We affirm.

I.

This is the second appeal in the Klan's effort to participate in the Adopt-A- Highway program. In the first case, the State, without taking official action on the Klan's application, sought a declaratory judgment that it lawfully could prevent the Klan from adopting a highway. See Missouri ex rel. Missouri Highway & Transp. Comm'n v. Cuffley, 927 F. Supp. 1248 (E.D. Mo. 1996) (Cuffley I). We dismissed that action because we lacked jurisdiction over the State's request for essentially an advisory opinion on its plan to deny the application. See Cuffley I, 112 F.3d 1332 (8th Cir. 1997) (finding no federal question jurisdiction and no Article III case or controversy). At the time, we emphasized that "we cannot determine what reasons the State actually will choose to support its denial." Id. at 1338.

The State now has acted on the Klan's application. In an August 14, 1997, letter to the Klan, the State gave five reasons for denying its application:

The Knights of the Ku Klux Klan does not adhere to all state and federal nondiscrimination laws in that it discriminates on the basis of race, religion, color and national origin. [2] The Knights of the Ku Klux Klan has a history of unlawfully violent and criminal behavior. [3] 42 USC2000(d)4a(I)(A) [Title VI of the Civil Rights Act of 1964] prohibits Missouri Department of Transportation from conferring a benefit to the Knights of the Ku Klux Klan because of the Knights' discriminatory practices, and granting the application would confer such a benefit in contravention of federal law. [4] Executive Order 94-03 prohibits state agencies from allowing discriminatory practices on state facilities and prohibits contracting with an organization that discriminates, and, therefore, prohibits the Knights of the Ku Klux Klan from participating in this program. [5] The district has placed a moratorium on adoptions on interstate highways within the City of St. Louis.

Letter from Stephen Knobbe to Michael Cuffley (Aug. 14, 1997). This time the Klan filed suit. On cross motions for summary judgment, the District Court granted summary judgment for the Klan. See Cuffley v. Mickes, 44 F. Supp. 2d 1023 (E.D. Mo. 1999) (Cuffley II). We now have a "concrete record for judicial consideration" and can decide the issues pressed before us. Cuffley I, 112 F.3d at 1338.

II.

We review a summary judgment decision de novo.² "The party seeking summary judgment must establish the absence of a genuine issue of material fact and his entitlement to judgment as a matter of law." Artis v. Francis Howell N. Band Booster Ass'n, 161 F.3d 1178, 1180 (8th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). We may affirm the decision of the District Court on any basis supported by the record. See id.

We believe the undisputed facts conclusively demonstrate that the State unconstitutionally denied the Klan's application based on the Klan's views.³

From the very beginning of this controversy when the Klan first applied to adopt a highway in May 1994, the State treated the Klan differently from the vast majority of applicants. The deposition of Stacy Armstrong, the statewide coordinator for the Adopt-A-Highway program and designated to speak on behalf of the State in the initial litigation, is remarkable for its candor in this regard.

Q. . . . Now, somebody at some point must have made a decision that this was the kind of case, this Klan application was the kind of case, that must be referred for special treatment, whether it be by higher-ups or it be by the court to make a decision; right?

A. Right.

. . .

A. The Adopt-A-Highway coordinator for the district called me. . . .

Q. Now, is it fair to say that his calling you about an individual application to ask your guidance as to what to do is something that's out of the ordinary?

. . .

A. I'd say yes.

Q. It connotes a special situation?

A. Right.

Deposition of Stacy Armstrong at 57-59 (Apr. 12, 1995). And it is undisputed that this disparate treatment was based on the State's perception of the Klan's beliefs.

Q. And what is it about the Klan application that he considered to be a special situation?

A. It was just who it was from and what they wanted on the sign.

Q. It had to do with what he perceived to be their beliefs?

A. As a group, yes.

Q. And what they were advocating?

A. Right.

. . .

Q. And that the basis for your decision to treat this organization's application for further review was based on your perception of what the group believed and what they advocated?

A. Right.

Id. at 59-61. There are repeated admissions from the State's designee on these points, including the surprising admission that the State thinks it has the right to deny an application on the basis of the applicant's beliefs.

Q. So you believe as part of your job that you should examine a group's beliefs to see if there's something about what they believe in and what they advocate to see if they may be qualified or disqualified from the program?

A. I think that we have a right to look at what they stand for and what they believe.

Q. And if they don't stand for something that is acceptable to the department you believe that you can disqualify them from the program; is that correct?

. . .

A. . . . I think the department has the right to deny somebody.

Q. On the basis of their beliefs?

A. On the basis of their beliefs, yes.

Id. at 19-20.

The State since has filed a "curative" affidavit from Armstrong. Armstrong now maintains that the State does not consider the beliefs of the applicant, but simply applies Adopt-A-Highway program regulations to determine whether an applicant is eligible to adopt.⁴ We do not believe, however, that Armstrong's deposition evinces the kind of mistake and confusion necessary to allow her contradictory affidavit to create an issue of fact on these points. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983). Accordingly, we reject her affidavit and conclude that there is no question that the State treated the Klan differently from the vast majority of applicants based on the State's perception of the Klan's beliefs and advocacy.

To be sure, a justification for further review of an application does not necessarily equate with the justification for denial of an application. Nevertheless, absent a convincing and constitutional reason for the denial, the evidence leaves us with but one conclusion: that the State denied the Klan's application based on the Klan's beliefs and advocacy. For the last fifty years, the Supreme Court has made it clear that such a denial is unconstitutional:

[E]ven though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Such interference with constitutional rights is impermissible.

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958) (alteration in Perry)).⁵

As we have noted, in its letter to the Klan, the State offered five reasons to support its denial of the application. We need not address the State's fifth purported reason, the moratorium within the City of St. Louis, because the Klan amended its application to adopt a stretch of Interstate 55 south of the City of St. Louis. Accordingly, this aspect of the controversy is now moot. We discuss the State's first four reasons below.

The State's first purported reason for denying the Klan's application essentially amounts to the State's contention that the Klan does not satisfy one of the regulations issued by the State shortly after the Klan first submitted its application: "Applicants must adhere to the restrictions of all state and federal nondiscrimination laws. Specifically, the applicant must not discriminate on the basis of race, religion, color, national origin or disability. Such discrimination...