Robb v. Hungerbeeler
| Citation | 281 F.Supp.2d 989 |
| Decision Date | 10 September 2003 |
| Docket Number | No. 4:01CV1133 CDP.,4:01CV1133 CDP. |
| Parties | Thomas ROBB, et al., Plaintiffs, v. Henry HUNGERBEELER, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Robert Herman, Partner, Schwartz and Herman, St. Louis, MO, for plaintiff.
Paula R. Lambrecht, Jefferson City, MO, Philip E. Morgan, Jr., Milton C. Spaulding, Chesterfield, MO, for defendants.
This case involves the state's second refusal to allow the Ku Klux Klan to participate in Missouri's Adopt-A-Highway program. In an earlier case the Court of Appeals held that the Missouri Highway and Transportation Commission had unconstitutionally denied the Klan's application to the program based on the Klan's beliefs and advocacy. After that ruling, the Commission adopted new state regulations, which became effective in January of 2001. The Klan applied again, and, citing the new regulations, the Commission again denied the application. The Klan brought this § 1983 action seeking declaratory judgment and injunctive relief.
The parties have filed cross-motions for summary judgment. After careful consideration of the facts, I will grant the Klan's motion for summary judgment. The undisputed facts show that Commission's reasons for denying the Klan's application are unconstitutional. The Court of Appeals has already ruled that the state cannot deny the application because the Klan discriminates on the basis of race, and that decision is binding in this case. The state's other asserted justification — that it can deny an application where courts have previously taken judicial notice that the applicant has a history of violence — is not reasonable in light of the purpose of the forum. I will therefore enter a declaratory judgment in favor of the Klan.
The Missouri Highways and Transportation Commission is responsible for the location, design, and maintenance of all highways in the State of Missouri. In furtherance of its continuing maintenance of the state highway system, the Commission established the Adopt-A-Highway program, which is a voluntary program enacted to "reduce litter along the highways, enhance the environment and beautify Missouri's roadsides." Mo.Code Regs. Ann. tit. 7, § 10-14.010(2). Participants in the program conduct activities to help control litter along Missouri highway rights-of-way, which minimizes the expenditures of public funds for litter control.
Civic and nonprofit organizations, commercial and private enterprises, and individuals may submit an application, on a form provided by the Commission, to adopt a designated portion of a state highway. Id. at § 10-14.030. In return, the participants receive recognition for their efforts through a sign acknowledging the identity of the individual or group providing the work. The Commission bears the costs of sign production, erection, and maintenance. The sign, which is erected on the adopted section of the highway, lists only the name of the program participant. The Commission does not allow any symbols, logos, advertising, or other statements to be placed on the signs. Id. at § 10-14.050.
If an application is approved by the Commission, the adopter or the adopter's representative executes a written agreement with the Commission setting forth each party's responsibilities. Id. at § 10-14.040. In this contract, the adopter agrees to "[i]ndemnify and hold harmless the commission and department and their officers, employees and agents from any claim, lawsuit or liability which may arise from the adopter's participation in the program." Id. at § 10-14.040(2)(K). The Commission is responsible for determining the specific section of highway right-ofway that is to be adopted. The Commissions also provides the adopter with safety training and safety equipment, and agrees to remove and dispose of filled trash bags along the sides on the highway.
In March of 2000, the United States Court of Appeals for the Eighth Circuit held that the Commission could not exclude the Knights of the Ku Klux Klan from its Adopt-A-Highway program solely on the basis of the Klan's viewpoint. Cuffley v. Mickes, 208 F.3d 702, 707 (8th Cir. 2000).1 After this decision, the Commission promulgated new program regulations with respect to eligible adopters, which became effective on January 30, 2001. These regulations provide in part:
(1) The adopter or adopter representative of a group who desires to participate in the program shall submit an application to the commission on a form provided by the commission.
(2) Eligible Adopters. Eligible adopters include civic and nonprofit organizations, commercial and private enterprises and individuals: 1) who have not been convicted of, or pled guilty or no contest to, a violent criminal activity, except as provided below; 2) whose participants have not been convicted of, or pled guilty or no contest to, a violent criminal activity, except as provided below; 3) for whom state or federal courts have not taken judicial notice of a history of violence; or 4) who do not deny membership on the basis of race, color, or national origin. Any individual adopter or participant may be eligible ten (10) years after the completion of incarceration, probation or parole. Applicants who do not meet the eligibility requirement will be denied participation in the program. The commission reserves the right to limit the number of adoptions for a single group.
(3) Acceptance of Application. The commission will have sole responsibility in determining whether an application is rejected or accepted and determining what highway will or will not be eligible for adoption.
* * * * * *
(c) The adopter representative will certify on the application form that the group or organization does not deny membership on the basis of race, color, or national origin.
Mo.Code Reg. Ann. tit. 7, § 10-14.030(2).
On April 19, 2001, Ralph L. Griffith, the Unit Coordinator for the Klan, Realm of Missouri, Unit 188, filed an application on behalf of the Klan to participate in the Adopt-A-Highway program on a one-half mile long stretch of Route 21 in Washington County, Missouri. Don Hillis, a Commission state maintenance engineer, reviewed the Klan's application under the procedures set forth under the new regulations. In a May 18, 2001 letter to Griffith, the Commission notified the Klan that its application was denied, stating:
Under the Adopt-A-Highway rules, a group or organization is eligible to participate in the Adopt-A-Highway program only if it meets the qualification requirements set forth in the state regulations, specifically 7 CSR 10-14.030. Those requirements provide that no group or organization may participate in the program if state or federal courts have taken judicial notice of a history of violence by that group or organization or if the group or organization denies membership on the basis of race, color, or national origin.
Missouri undertakes judicial notice checks of every applicant seeking to participate in the program. Also, applicant groups or organizations are asked on the application form whether they deny membership on the basis of race, color, or national origin. Our judicial notice check confirms that courts have taken judicial notice of a history of violence by the Knights of the Ku Klux Klan. Furthermore, your application states that your group denies membership on the basis of race, color or national origin. I recognize that litigation with Michael Cuffley and the Knights of the Ku Klux Klan, Realm of Missouri recently concluded. In the course of that litigation, and as a result of court rulings that were critical of Missouri Department of Transportation's rules and process at the time, MoDOT responded by revising its rules to ensure they contain eligibility criteria that are viewpoint neutral, that can be applied in an objective, evenhanded way, and that ensure that Missouri's voluntary litter control program is conducted consistent with legal obligations and in the public interest.
The Knights of the Ku Klux Klan do not meet the program's eligibility requirements under these rules. Therefore, your application is denied.
On July 19, 2001, Griffith and Thomas Robb, the National Director of the Klan, filed suit seeking declaratory judgment and injunctive relief. The Klan argues that the Commission unconstitutionally denied its application based on the 2001 regulations. The Klan named as defendants Hillis, Commission Director Henry Hungerbeeler, and the individual Commissioners. The parties have filed cross-motions for summary judgment.
To determine whether to grant summary judgment, I must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden to establish both the absence of a genuine issue of material fact and that they are entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in its pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e).
At the summary judgment stage, I will not weigh the evidence and decide the truth of the matter, but rather must only determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Rule 56(c) of the Federal Rules of Civil Procedure mandates entry of summary judgment against a party, if after adequate time for discovery, that party fails to make a showing sufficient to establish the existence of an essential...
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