STATE OF MO. EX REL. HIGHWAY & TRANSP. v. Cuffley

• Decision Date: 11 June 1996
• Docket Number: No. 4:94CV1264 (MLM).,4:94CV1264 (MLM).
• Citation: 927 F. Supp. 1248
• Parties: STATE OF MISSOURI, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff, v. Michael CUFFLEY and the Knights of the Ku Klux Klan, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

927 F. Supp. 1248

STATE OF MISSOURI, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff, v. Michael CUFFLEY and the Knights of the Ku Klux Klan, Defendants.

No. 4:94CV1264 (MLM).

United States District Court, E.D. Missouri, Eastern Division.

June 11, 1996.

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COPYRIGHT MATERIAL OMITTED

Curtis F. Thompson, Marci L. Horton, Missouri Highway and Transportation Commission, Jefferson City, MO, Richard B. Regan, Missouri Highway and Transportation Commission, Chesterfield, MO, for plaintiff.

Robert Herman, Partner, Schwartz and Herman, St. Louis, MO, for defendants.

MEMORANDUM AND ORDER

MEDLER, United States Magistrate Judge.

This case is before the Court on the complaint which the Missouri State Highway Transportation Commission ("Commission") has filed against Michael Cuffley and the Knights of the Ku Klux Klan ("the Klan") seeking a declaratory judgment that the Commission does not have to accept the Klan's application to participate in the Missouri "Adopt-A-Highway Program." Presently pending before the Court are: (1) the Commission's motion for summary judgment 18; and (2) the Klan's cross-motion for summary judgment 16. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

I. SUMMARY JUDGMENT STANDARDS

Courts have recognized that summary judgment is a remedy which the courts should only grant when the moving party has established his right to judgment with such clarity as not to give rise to controversy. City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268 (8th Cir.1988). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Id. Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a motion for summary judgment if all the information before it shows that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). With these principles in mind the Court turns to an examination of the facts and finds that the material facts are undisputed.

II. STATEMENT OF UNDISPUTED FACTS

The Missouri Highway and Transportation Commission is responsible for the location, design and maintenance of all state highways within the State of Missouri. In furtherance of its continuing maintenance of the state highway system, the Commission has established an Adopt-A-Highway Program, which is a voluntary program enacted to promote litter control and to reduce the costs of litter abatement to the Commission. Participants in the Adopt-A-Highway Program conduct activities to help control litter along state highway rights-of-way. These activities minimize the expenditure of public funds for litter control.

"Any person, organization, club or governmental agency" may join to clean or maintain a designated portion of state highway. The Commission makes no distinction between participation by individuals and groups, not-for-profit and for-profit and secular and religious organizations. The Commission also allows political organizations to participate in the Program. In return, the participants receive recognition for their efforts through a sign provided by the Commission acknowledging the identity of the group providing the work. The highway sign bears only the name of the Program participant. The Commission allows no symbols, logos, advertising or other statements on the signs.

The Commission recognizes that many of the groups participating in the Program are motivated to participate in the Program by the desire for publicity or "free advertising," in the case of commercial organizations; recognition of their views in the case of political or social organizations; and even the desire to proselytize for new members, in the case of religious organizations. The Commission has no objection to these mixed motives.

There are no formal written administrative regulations that govern the Adopt-A-Highway Program. There is an informal "internal letter" which provides general guidelines for the Program. However, this letter does not specify any procedures, does not restrict participation in the Program in any manner, does not set minimum qualifications for the individuals or organizations participating in the Program and does not provide any review procedure to be utilized when applications are denied. The Commission approves the overwhelming majority of applications without review and the applications which the Commission does review are on a case-by-case basis and only if the applicant seems "sensitive" or out of the ordinary.

The application process begins when the prospective applicant contacts the local highway department office and requests availability of highway locations. The local office then advises the applicant which locations are available and the applicant decides on a location, submitting a form provided by the Commission. The local office then forwards the completed application form to the main Commission office in Jefferson City, Missouri, which then orders the appropriate sign bearing the name of the adopter. Normally, the entire procedure takes approximately four to six weeks.

In the past, the Commission has given "careful consideration" or "special treatment" to groups where the Commission perceived that the applicant's name or beliefs were a cause for concern due to the "controversial nature of the group." The Commission cites groups such as a gay and lesbian awareness group and the "Environmental Witches" as being applications which were referred for special review treatment. Nevertheless, the Commission ultimately approved these applicants and allowed them to adopt a highway. The Commission did ask a group named "Truckin' Seduction" to reconsider its application on the grounds that its name was sexually suggestive, but the group withdrew its application and never reapplied.

The Commission asserts the right to review on a case-by-case basis and eliminate from participation in the Program, groups whose beliefs and views are unacceptable to the Commission. The measure of acceptability of a group is solely within the discretion of the Commission officials. The Commission provides no regulations which prohibit participation in the Program on the grounds that the applicant discriminates against persons on the basis of race, sex, creed or color.

On May 31, 1994, Michael Cuffley, as the "Unit Recruiter" of the Knights of the Ku Klux Klan, filed an application to participate in the Adopt-A-Highway Program by adopting a portion of a state highway right-of-way. The application for adoption designated as the portion to be adopted I-55 between Utah and Gasconade, a one half mile stretch of interstate highway within the City of St. Louis. The Klan properly completed and filed its application with the St. Louis local Highway Department office and did nothing in the application process out of the ordinary. The Klan's application was referred to the Commission which, in turn, voted in a special meeting to refer the matter for litigation as a means of securing the Commission's right to deny the Klan's participation in the Program. As of this date, the Commission has taken no action on the application.

The State of Missouri has adopted an ethnic intimidation statute. Mo.Rev.Stat. §§ 574.090-.093 (1993). The Governor of the State of Missouri issued Executive Order 94-03 which states in Article VII that:

no State facility shall be used to promote any discriminatory practice, nor shall any department become a party to any agreement which permits discriminatory practice prohibited by this order, state or federal law.

The school districts of the City of St. Louis and St. Louis County have been ordered to desegregate their respective school districts. The District Court for the Eastern District of Missouri maintains jurisdiction over the school desegregation matter and enters orders as appropriate. Desegregation efforts include the Voluntary Interdistrict Busing Program. The section of the highway that is on the application received by the Commission from the Klan is one of the routes used by busses transporting African-American students from St. Louis City to and from county schools as part of the desegregation efforts.

The Commission is a recipient of federal aid funds through the Federal Highway Administration. The Federal Highway Administration issued an opinion on September 2, 1992 requiring the activities of all recipients of federal funds to comply with all applicable non-discrimination statutes.

Although there are numerous organizations that use the name "Ku Klux Klan" in their title, the Defendant Klan traces its origin to the original Ku Klux Klan founded by General Bedford Forrest following the end of the Civil War. The Klan has organizations in each of the fifty states. Mr. Cuffley was the unit coordinator for the Klan, Missouri Realm, at the time of the application to adopt and was the highest ranking official of the Missouri organization at that time. Federal courts have taken judicial notice of the history of the Klan groups and the history of violence, racial hatred and bigotry of these groups. See McMullen v. Carson, 754 F.2d 936, 938 (11th Cir.1985); Marshall v. Bramer, 110 F.R.D. 232, 235 (W.D.Ky. 1985).

III. ANALYSIS

The First Amendment guarantees freedom of speech.¹ "The protection granted by the First Amendment is not limited to verbal utterances but extends as well to expressive conduct." Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). Moreover, the freedom of speech protected by the First Amendment, though not absolute, "includes both the right to speak freely and the right to refrain from speaking at...