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.
Nos. 99-2334, 99-2501
United States Court of Appeals, Eighth Circuit
March 31, 2000
Rehearing and Rehearing En Banc Denied May 22, 2000.
208 F.3d 702
Arkansas State Highway Commission; United States of America, Amici on Behalf of Appellant.
Both the Missouri Court of Appeals and the district court found that the decision by Thomas‘s trial counsel not to call Thomas‘s son as a witness was well within the bounds of reasonable professional judgment, and we agree. Testimony from the state post-conviction evidentiary hearing addressing this question made clear that any testimony Thomas‘s son might have given in support of the defense would have been either highly implausible or dramatically impeachable. We presume that the post-conviction court‘s factual findings are correct, see
Finally, Thomas contends that his counsel was ineffective for failing to argue at trial that the eyewitness identification testimony of three witnesses was inadmissible, based in part on the fact that Thomas wore the same “Bud Light” jacket at the police lineup that some of the identification witnesses recalled seeing the perpetrator wear during the shooting. We can discern no error in the Missouri court‘s decision to reject this claim. Conditions at the crime scene were such as to permit adequate observation, the police did not employ suggestive identification procedures, and Thomas has not presented any evidence to support his contention that the first witness who picked him out of a police lineup improperly influenced the two witnesses who subsequently selected Thomas. Thus, given the totality of the circumstances, the testimony does not appear to have been unreliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (reliability “is the linchpin in determining the admissibility of identification testimony“); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (courts must weigh totality of the circumstances to determine whether identification procedures were impermissibly suggestive); Williams v. Armontrout, 877 F.2d 1376, 1379 (8th Cir. 1989) (discussing factors to consider in assessing reliability); United States v. Medina, 552 F.2d 181, 188-89 (7th Cir.1977) (pretrial identification procedures not rendered unduly suggestive by fact that suspect wore same clothes in lineup as robber wore at time of commission of crime).
The judgment is affirmed.
Matthew M. Collette, Washington, DC, argued (Bill Lynn Lee, Mark L. Gross, Jennifer Levin, Nancy E. McFadden, Karen E. Skelton, David O. Ogden, Edward Dowd, and Mark B. Stern, on the brief), for Amici on Behalf of Appellant.
Robert Herman, St. Louis, Missouri, argued, for Appellees/Cross-Appellants.
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.
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 Missouri ex rel. Missouri Highway and Transportation Commission v. Cuffley, 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: [1] 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]
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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.
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.3
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 depart-
ment, 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, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (alteration in Perry)).5
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 disqualifies the applicant from participation in the program.”
Requiring the Klan essentially to alter its message of racial superiority and segregation by accepting individuals of other races, religions, colors, and national origins in order to adopt a highway would censor its message and inhibit its constitutionally protected conduct. We find Invisible Empire of the Knights of Ku Klux Klan v. Mayor, Board of Commissioners and Chief of Police of Town of Thurmont, Md., 700 F.Supp. 281 (D.Md.1988), persuasive in this regard. In Thurmont, the court held that a town‘s nondiscrimination condition on public parades violated the Klan‘s freedom of expressive association. The court6
If ever there was a case where the membership and the message were coextensive, it is here.... The KKK has nothing to do with the distribution of goods and services, nor with business contacts or advantages. The group‘s primary purpose is to advocate one main concept—that blacks and whites should not mix. Allowing blacks to march with the KKK would change the primary message which the KKK advocates.
The State‘s response to Thurmont, and indeed, one of its broader arguments, is that, unlike in Thurmont where the Klan would simply march along a public street, here the State would enter into some kind of “prohibited” relationship with the Klan. As we understand its argument, the State fears that it would violate the Fourteenth Amendment by allowing the Klan to adopt a highway. The State cites Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), for the proposition that discrimination by a group associated with the State is, in effect, discrimination by the State and thus meets the state action requirement of the Fourteenth Amendment. But even Burton does not extend so far as to reach the relationship at issue here. In Burton, the Supreme Court found state action when a private coffee shop, operating within a publicly owned building, refused service to a black customer. What we have here, however, is more like a State owned coffee shop offering service to a group of customers who want a table for only their white friends.7 The state action doctrine does not extend so far. 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. Accordingly, we conclude that this reason for refusing participation, like the viewpoint reason admitted in deposition, constitutes an unconstitutional condition on the Klan‘s participation in the Adopt-A-Highway program.
The State‘s second purported reason, that the Klan has a history of unlawfully violent and criminal behavior, is based on another of the State‘s new regulations: “Applicants with a history of unlawfully violent or criminal behavior will be prohibited from participation in the program.”
As we read the regulation, anyone who has ever committed any criminal act, from murder and mayhem to joyriding and jaywalking, is ineligible to participate in the program. Were the State actually to enforce this regulation with any regularity, we have little doubt the Adopt-A-Highway program would soon have few adopters. Recognizing this problem, the State is not really sure how the regulation should be applied:
Q. All right. Well, tell me what criminal behavior is?
A. Criminal behavior is behavior that violates the law.
Q. Any law?
A. I would say that is what it would intend.
Q. Have you ever gotten a ticket for speeding?
A. No, I haven‘t, but I wouldn‘t call that a history.
Q. Well, it says—all right. If you‘ve got 10 tickets for speeding, would that be a history?
A. It would depend on the time frame.
Q. Okay. Drunk driving? DWI? BAC?
A. I‘m not sure that would. It could.
Q. It could. Depending on?
A. I can‘t give you a criteria.
Q. How about antitrust? Archer Daniels Midland pleaded guilty to criminal antitrust violations, federal criminal antitrust violations. Are they excluded from adopting a highway?
A. I would say if there was any question, I would seek legal counsel on it.
Deposition of Joseph A. Mickes at 52 (Mar. 20, 1998) (emphasis added). That the State does not know how the regulation applies in practice to the Adopt-A-Highway program is not surprising because the State has never applied the regulation to anyone other than the Klan. Even though the regulation became effective in July 1995, barely a year after the Klan filed its application, the State has never asked an applicant a single question about criminal history, has never done a single investigation of criminal history, and has no idea whether any of the participants in the program have such a history. At oral argument, the State backed further away from the incredible breadth of the regulation, arguing that it was intended to address violent criminal behavior such as that committed by the Klan in the past. The State‘s argument makes even clearer what was already obvious: that this regulation was intended to target only the Klan and its views.
The State‘s third purported reason for denying the Klan‘s application is that allowing the Klan to participate in the Adopt-A-Highway program would violate Title VI of the Civil Rights Act of 1964,
Title VI clearly does not apply directly to prohibit the Klan‘s discriminatory membership criteria. The Klan is not a direct recipient of federal funds nor are federal funds earmarked for the Klan. See National Collegiate Athletic Ass‘n v. Smith, 525 U.S. 459, 468, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999) (“Entities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not.“). There is not even an allegation here that the State pays for the Adopt-A-Highway program with earmarked federal funds. The Klan thus is not subject to Title VI.
The question remains, however, whether Title VI prohibits the State from allowing the Klan to participate in the Adopt-A-Highway program. Under U.S. Department of Transportation regulations, the State, as a recipient of federal funds, “may not, directly or through contractual or other arrangements, on the grounds of race, color, or national origin ... [d]eny a person an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program.”
The State‘s fourth purported reason for denying the Klan‘s application is that the State would violate Article VII of the State‘s Executive Order 94-03 (Jan. 14, 1994) by allowing the Klan to adopt a highway. That Order provides:
Every department shall offer its services to the public without discrimination. No State facility shall be used to promote any discriminatory practice, nor shall any department become a party to any agreement which permits any discriminatory practice prohibited by this order, state or federal law.
First, as we described above in the Title VI context, offering a service to a group that discriminates is not equivalent to discrimination in the offering of that service. Second, the State admitted repeatedly in depositions that it does not view the erection of an Adopt-A-Highway sign as an endorsement or promotion of the adopter. In fact, the State‘s own regulations, conveniently drafted after the Klan applied, provide that “[t]he program is not intended as a means of providing a public forum for the participants to use in promoting name recognition or political causes.”
Not only do the State‘s discrimination-related reasons not make sense, but there is also evidence that, like the criminal-history reason, these three reasons are entirely pretextual. The State admitted repeatedly in deposition testimony that it does not ask organizations that apply to the program about their membership criteria nor does it investigate the applicants’ membership criteria. Instead, the State claims to rely solely on common knowledge. But the State has never denied the application of any other group on the grounds of discriminatory membership. A quick glance down the list of participants in the Adopt-A-Highway program, however, reveals many adopters that have discriminatory membership criteria. For example, it is commonly known that the Knights of Columbus, a venerated service organization that has chapters adopting many stretches of highway across the State, limits its membership to Catholic men.8 Once again, the State‘s actions speak louder than its words.
The State‘s purported reasons for denying the Klan‘s application are so obviously unreasonable and pretextual that, in the end, we are left only with the admitted reason the State was motivated to so carefully scrutinize the Klan‘s application as an explanation for the denial: that the State disagrees with the Klan‘s beliefs and advocacy. Nevertheless, the First Amendment protects everyone, even those with viewpoints as thoroughly obnoxious as those of the Klan, from viewpoint-based discrimination by the State. “Such interference with constitutional rights is impermissible.” Perry, 408 U.S. at 597.
There are better ways of countering the Klan‘s repellent philosophy than by the State‘s engaging in viewpoint-based
BOWMAN
CIRCUIT JUDGE
Notes
(1) Eligible Adopters. Eligible adopters include civic and nonprofit organizations, commercial and private enterprises and individuals. 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. The commission reserves the right to limit the number of adoptions for a single group.
(2) Acceptance of Application. The commission will have sole responsibility in determining whether an application is rejected or accepted and determining what highways will or will not be eligible for adoption.
(A) The commission may refuse to grant a request to participant if, in its opinion, granting the request would jeopardize the program, be counterproductive to its purpose or have undesirable results such as increased litter, vandalism or sign theft.
(B) 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 disqualifies the applicant from participation in the program.
(C) Applicants with a history of unlawfully violent or criminal behavior will be prohibited from participation in the program.