State of Mo. ex rel. Missouri Highway and Transp. Com'n v. Cuffley

• Citation: 112 F.3d 1332
• Decision Date: 16 June 1997
• Docket Number: Nos. 96-2913,96-3740,s. 96-2913
• Parties: STATE OF MISSOURI ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. Michael CUFFLEY, individually and as the Unit Recruiter of the KKK; Knights of the Ku Klux Klan, Appellees (Two Cases). Arkansas State Highway Commission; United States of America, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1332

112 F.3d 1332

STATE OF MISSOURI ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. Michael CUFFLEY, individually and as the Unit Recruiter of

the KKK; Knights of the Ku Klux Klan, Appellees

(Two Cases).

Arkansas State Highway Commission; United States of

America, Amici Curiae.

Nos. 96-2913, 96-3740.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1997.

Decided May 7, 1997.

Rehearing Denied June 16, 1997.

Curtis F. Thompson, argued, Jefferson City, MO (Sharon Schulte, Jefferson City, MO, and R.B. Regan, Chesterfield, MO, on the brief), for appellant.

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

Matthew M. Collette, argued, Justice Dept., Washington, DC, for Amicus U.S.

Robert L. Wilson, Chief Counsel, Arkansas Highway and Transportation Dept. filed an amicus brief.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Nearly three years ago, Michael Cuffley, a representative of the Missouri Realm of the Knights of the Ku Klux Klan (the Klan), filed an application with the Missouri Highway and Transportation Commission (the State) for the Klan to participate in Missouri's Adopt-A-Highway program. The State neither approved nor denied the Klan's application; instead, the State filed this action in federal district court, seeking a declaratory judgment that it was not required to approve the Klan's application. The Klan counterclaimed, seeking a declaratory judgment and a writ of mandamus ordering the State to allow it to participate in the Adopt-A-Highway program. Following discovery, the District Court granted the Klan's motion for summary judgment, concluding that "any decision on the part of the [State] to exclude the Klan's participation in the Missouri Adopt-A-Highway Program will be a violation of the Klan's First Amendment right to free speech." Missouri, ex rel., Missouri Highway & Transp. Comm'n v. Cuffley, 927 F.Supp. 1248, 1265 (E.D.Mo.1996). The court later awarded attorney fees to the Klan pursuant to 42 U.S.C. § 1988(b) (1994).

In this Court, the State challenges the District Court's decision on the merits and, in a consolidated appeal, the award of attorney fees to the Klan. The parties and amici have submitted extensive briefs, a voluminous record, and lengthy oral arguments. In their eagerness to resolve this dispute, however, the parties--and, apparently, the District Court--have overlooked two significant jurisdictional roadblocks. We conclude that this action involves neither a properly presented federal question nor a controversy that is ripe for review. Accordingly, we vacate the judgment of the District Court and remand the case with instructions to dismiss it.

I.

Only a brief recitation of the factual context of this case is necessary. The State's Adopt-A-Highway program is designed to reduce the State's litter-control expenses by enlisting volunteers to clean up highway rights-of-way. A brochure produced by the State represents that "[a]ny person, organization, club or governmental agency can adopt a section of state highway." App. at 213. The State erects a sign acknowledging the participation of each person or group that adopts a section of highway.

In May 1994, the Klan applied to participate in the Adopt-A-Highway program. It is unclear from the record whether the Klan requested a specific section of highway, but the parties' attention eventually centered on a stretch of Interstate 55 in south St. Louis. Without approving or denying the Klan's application, the State authorized its attorneys in June 1994 to begin this litigation.

At the time the Klan filed its application, the State had only a series of guidelines regarding participation in the Adopt-A-Highway program. The only relevant guideline suggested that "individuals or organizations which historically or presently advocate unlawful violence" should be excluded from the program. App. at 216. The State later promulgated official regulations governing the program. These regulations, which went into effect after the District Court took the parties' cross-motions for summary judgment under submission, permit the State to exclude applicants whose participation would be counterproductive to the program; applicants that discriminate on the basis of race, religion, color, national origin, or disability; and applicants with a history of unlawfully violent or criminal behavior. See Mo.Code Regs.Ann. tit. 7, § 10-14.030(2) (effective July 30, 1995). For good measure, the regulations also state that the program "is not intended as a means of providing a public forum for the participants to use in promoting name recognition or political causes." Id. § 10-14.030(1).

The District Court concluded that the Klan's participation in the Adopt-A-Highway program involved elements of protected speech and that the program probably constituted a designated or limited public forum. See 927 F.Supp. at 1254-58. The court held that the State's attempt to exclude the Klan from the program was both content- and viewpoint-based, so that the State's action was unconstitutional, regardless of the type of forum. See id. at 1259-64. Accordingly, the court granted the Klan's motion for summary judgment and entered a declaratory judgment in the Klan's favor. See id. at 1265. ¹

Thus far in this case, the parties have not disputed the subject-matter jurisdiction of the federal courts. ² Nevertheless, subject-matter jurisdiction cannot be waived, and it is our duty to raise the issue sua sponte. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Boatmen's First Nat'l Bank v. Kansas Pub. Employees Retirement Sys., 57 F.3d 638, 640 n. 4 (8th Cir.1995); Burris v. City of Little Rock, 941 F.2d 717, 721 (8th Cir.1991).

II.

We begin with the question of statutory jurisdiction. It has long been understood that the federal Declaratory Judgment Act, now codified at 28 U.S.C. § 2201 (1994), is a procedural statute, not a jurisdictional statute. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 15-16, 103 S.Ct. 2841, 2849-50, 77 L.Ed.2d 420 (1983); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950). Accordingly, federal jurisdiction is proper only if this case comes within an express congressional grant of jurisdiction. Because it is clear from the record that the parties are not of diverse citizenship, we look to federal-question jurisdiction. The federal courts have jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1994). This action quite obviously turns on the First Amendment, but it is not enough that such a constitutional issue is present in the case. The "well- pleaded complaint" rule further limits federal-question jurisdiction to those cases in which the plaintiff's own complaint establishes that the action arises under federal law. See Franchise Tax Board, 463 U.S. at 10, 103 S.Ct. at 2846-47; Gully v. First Nat'l Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).

Since this is a suit seeking a declaratory judgment, there is an additional twist to the jurisdictional inquiry. Because an action for declaratory relief is merely a substitute for a more traditional action for damages or injunctive relief, we must consider whether a well-pleaded complaint in such a traditional action would present a federal issue. See Franchise Tax Board, 463 U.S. at 15-16, 103 S.Ct. at 2849-50; Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952) ("Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court.") (dictum); Skelly Oil, 339 U.S. at 671-74, 70 S.Ct. at 878-80, 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2767, at 744-45 (2d ed. 1983) ("[I]f, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking. On the other hand, if the federal issue would inhere in the claim on the face of the complaint that would have been presented in a traditional damage or coercive action, then federal jurisdiction exists over the declaratory judgment action.") (footnote omitted).

We therefore look to see what sort of traditional damage or coercive action could come out of this standoff between the State and the Klan. In so doing, we will sidestep, for the time being, the ripeness problem that we consider in the next section of this opinion by assuming that the State had denied the Klan's application before coming to court. In such circumstances, the Klan could bring an action under 42 U.S.C. § 1983 alleging that the State violated its First Amendment rights by preventing it from participating in the Adopt-A-Highway program. ³ Such a lawsuit, of course, would arise under federal law and would be within the jurisdiction of the federal courts.

Were our inquiry at an end here, we would conclude that this case is properly in federal court, but there remains one additional issue. It is significant that this action was brought by the State; to see why, we must examine the Supreme Court's decision in Franchise Tax Board. That case involved attempts by the California Franchise Tax Board "to collect unpaid state income taxes by levying on funds held in trust for the taxpayers under an ERISA-covered vacation benefit plan." Franchise Tax Board, 463 U.S. at 4, 103 S.Ct. at 2843. The plan refused to honor the levies, claiming that ERISA...