Robb v. Hungerbeeler

• Decision Date: 03 June 2004
• Docket Number: No. 03-3547.,03-3547.
• Citation: 370 F.3d 735
• Parties: Thomas ROBB; Knights of the Ku Klux Klan, an Arkansas Corporation; Ralph Griffith; Knights of the Ku Klux Klan Realm of Missouri, Unit 188, an unincorporated association, Appellees, v. Henry HUNGERBEELER, in his official capacity as Director of the Missouri Highways and Transportation Commission; S. Lee Kling; Edward D. Douglas; Ollie W. Gates; W.L. Orscheln; William E. Gladden; Marjorie B. Schramm, in their official capacities as commissioners of the Missouri Highways and Transportation Commission; Don Hillis, in his official capacity as State Maintenance Engineer, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

370 F.3d 735

Thomas ROBB; Knights of the Ku Klux Klan, an Arkansas Corporation; Ralph Griffith; Knights of the Ku Klux Klan Realm of Missouri, Unit 188, an unincorporated association, Appellees, v. Henry HUNGERBEELER, in his official capacity as Director of the Missouri Highways and Transportation Commission; S. Lee Kling; Edward D. Douglas; Ollie W. Gates; W.L. Orscheln; William E. Gladden; Marjorie B. Schramm, in their official capacities as commissioners of the Missouri Highways and Transportation Commission; Don Hillis, in his official capacity as State Maintenance Engineer, Appellants.

No. 03-3547.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2004.

Filed: June 3, 2004.

Reheearing and Rehearing En Banc Denied July 30, 2004.

COPYRIGHT MATERIAL OMITTED

John M. Hessel, argued, St. Louis, MO (Keith J. Grady and Sandra F. Sperino, St. Louis on the brief), for appellant.

Robert Herman, argued, St. Louis, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, RILEY, and COLLOTON, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Unit 188 of the Knights of the Ku Klux Klan, a Missouri-based chapter of a non-profit corporation that was chartered in Arkansas in 1994, applied to participate in Missouri's Adopt-A-Highway (AAH) program. Participants in the AAH program agree to collect litter along a specific portion of highway at least twice every six months, see Mo.Code Regs. Ann. tit. 7, § 10-14.040(2)(J) (2001), and in return the Missouri Highways and Transportation Commission (the State) installs signs bearing the name of the adopter at both ends of the adopted section, see id. at §§ 10-14.040(3)(B), 10-14.050 (2001). After the State notified Unit 188 that its application was denied because it did not meet the AAH program's eligibility requirements that were set forth in state regulations, Unit 188, its unit coordinator, the Arkansas-based corporation, and that corporation's national director brought suit seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. The district court¹ granted the plaintiffs' motion for summary judgment, holding that the State's reasons for denying Unit 188's application were unconstitutional. See Robb v. Hungerbeeler, 281 F.Supp.2d 989 (E.D.Mo.2003).

The State appeals. It argues first that the district court erroneously concluded that it is collaterally estopped from litigating the constitutionality of its denial of Unit 188's application based on Unit 188's racially discriminatory membership criteria. Second, it maintains that the district court erred in holding that the State's application of a regulation barring participation in the AAH program by organizations for which courts have taken judicial notice of a history of violence violated Unit 188's first amendment rights, applied to the states through the fourteenth amendment. Reviewing the district court's judgment de novo, we affirm.

I.

This is the third appeal to this court arising out of the State's ongoing efforts to keep Missouri Klan groups out of the AAH program. In the first case, State of Mo. ex rel. Mo. Highway & Transp. Comm'n v. Cuffley, 112 F.3d 1332, 1333 (8th Cir.1997), the State, planning to deny a Klan group's application to participate in the program, filed an action seeking a declaratory judgment that it was not required to approve the application. We ordered the action dismissed, concluding that it involved neither a properly presented federal question nor a controversy that was ripe for review. Id. The State subsequently denied the group's application based, inter alia, on state regulations then in place that barred applicants that "discriminate on the basis of race, religion, color, national origin or disability" or that have "a history of unlawfully violent or criminal behavior." Mo.Code Regs. Ann. tit. 7, § 10-14.030 (1995). Another lawsuit ensued, and we affirmed the district court's grant of injunctive and declaratory relief to the Klan group, holding that requiring the group to abandon its racially restrictive membership policy as a condition of participating in the AAH program violated its constitutionally protected right of political association, and that the State's other proffered rationale for denying the application — that the organization had a history of unlawfully violent or criminal behavior — was mere pretext for unconstitutional viewpoint-based discrimination. See Cuffley v. Mickes, 208 F.3d 702, 704, 708-10 (8th Cir.2000) (Cuffley II), cert. denied, 532 U.S. 903, 121 S.Ct. 1225, 149 L.Ed.2d 135 (2001).

In response to Cuffley II, the State made some minor changes to its regulations, and Unit 188 then submitted the application to participate in the program that is at issue here. The State, citing the amended regulations, see Mo.Code Regs. Ann. tit. 7, § 10-14.030(2) (2001), denied the application on the grounds that a so-called "judicial notice check" had purportedly confirmed that "courts have taken judicial notice of a history of violence by the Knights of the Ku Klux Klan," and the application revealed that the "group denies membership on the basis of race, color or national origin."

II.

The district court concluded that the State was collaterally estopped from litigating the propriety of excluding Unit 188 from the AAH program pursuant to the discriminatory membership regulation, because of our holding in Cuffley II that barring a Klan group from the program because of its discriminatory membership criteria was unconstitutional. "Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).

For collateral estoppel purposes, the defendants here are functionally the same as those in Cuffley II. In both cases, several officials of the Missouri Highways and Transportation Commission were sued in their official capacities. Because "the real party in interest in an official-capacity suit is the governmental entity and not the named official," Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity," Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In Cuffley II and here, the defendants represented the interests and positions of the Missouri Highways and Transportation Commission.

The plaintiffs in this case, however, were not parties in Cuffley II. The plaintiffs here are the unincorporated association "Knights of the Ku Klux Klan Realm of Missouri, Unit 188," the Arkansas corporation "Knights of the Ku Klux Klan," Thomas Robb (the national director of the Arkansas-based Klan corporation), and Ralph Griffith (the unit coordinator for Unit 188), whereas the plaintiffs in Cuffley II were a different Missouri branch of the Klan (which also operated under Mr. Robb's supervision, but was unrelated to Unit 188), and Michael Cuffley (a unit recruiter for the Klan). Where a plaintiff is seeking to estop a defendant from relitigating an issue which the defendant previously litigated and lost against another plaintiff, trial courts have broad discretion to determine whether estoppel should be applied. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

We held in Cuffley II, 208 F.3d at 708-09, that requiring the Klan group to refrain from racial discrimination constituted "an unconstitutional condition on the Klan's participation in the Adopt-A-Highway program." Our resolution of this legal issue was necessary to our judgment affirming the grant of summary judgment for that Klan group. We agree with the district court that the State is presently attempting to re-litigate the same issue, which it had a full and fair opportunity to litigate in Cuffley II. We thus conclude that the district court properly exercised its discretion in applying an estoppel against the State.

The State urges us to hold that it is not estopped from litigating the issue of the legality of barring Unit 188 from the program based on its discriminatory membership criteria because the language of the regulation applied in the present case is slightly different from the language at issue in Cuffley II. Specifically, the regulation in Cuffley II required that participating organizations "`not discriminate on the basis of race, religion, color, national origin or disability,'" id. at 708 (quoting Mo.Code Regs. Ann. tit. 7, § 10-14.030(2)(B) (1995)), while the regulation applied here allows organizations to participate only if they "do not deny membership on the basis of race, color, or national origin," Mo.Code Regs. Ann. tit. 7, § 10-14.030(2) (2001). The regulation's amendment failed to address the constitutional defects that we noted in Cuffley II, other than by deleting disability and religion from the list of prohibited bases for discrimination by AAH participants, and we think that the State's argument that the issue presented in this case is somehow different because of these changes is wholly disingenuous.

In Cuffley II, we determined that "requiring the Klan to accept non-'Aryans' would significantly interfere with the Klan's message of racial superiority and segregation," id. at 708, and that the "State simply cannot condition participation in its highway adoption program on the manner in which a group exercises its constitutionally protected freedom of association," id. at 709. The State's newfound willingness to allow highway adopters to discriminate based on disability and religion does nothing to cure this infringement upon applicants' associational rights. The district court correctly observed that the new regulations "still allow the Commission to reject those applicants who discriminate in their membership...