APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:11-CV-01290-HE)
Nathan W. Kellum, Center for Religious Expression, Memphis, Tennessee (Jonathan A. Scruggs, Alliance Defending Freedom, Memphis, Tennessee, with him on the briefs), appearing for Appellant.
Kevin McClure, Assistant Attorney General, Office of Attorney General, Litigation Division, Oklahoma City, Oklahoma (Larry Patton, Senior Assistant General Counsel, and Meredith W. Wolfe, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, Oklahoma, with him on the brief), appearing for Appellees.
Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.
Due to a clerical error, the Opinion issued in this matter yesterday did not include a planned dissent. Consequently, the decision filed is vacated, and the clerk is instructed to reissue the Opinion, to include the dissent, and to reissue the judgment with today's date. A copy of the Opinion with the dissent is attached to this order.
MATHESON, Circuit Judge.
This appeal concerns an image stamped on the standard Oklahoma license plate of a Native American shooting an arrow toward the sky. Appellant Keith Cressman objects to the image as a form of speech and wishes not to display it on his personal vehicles. But Oklahoma law imposes sanctions for covering up the image, and the state charges fees for specialty license plates without it—fees that Mr. Cressman does not want to pay. Because he must either display the image or pay additional fees, he argues that the state is compelling him to speak in violation of his First Amendment rights.
Mr. Cressman sued several state officials for violation of his civil rights. Concluding that he failed to state a claim upon which relief could be granted, the district court dismissed his First Amended Complaint ("complaint") and denied his request for a preliminary injunction.
This case comes to us from the district court's dismissal of Mr. Cressman's complaint. Like the district court, our task is to determine, assuming Mr. Cressman can prove his allegations, whether he has a claim as a matter of law. This stage is therefore a test of his complaint, not of his evidence. In other words, if Mr. Cressman can prove the facts alleged in his complaint, is he entitled to relief?
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, and based upon Mr. Cressman's allegations and the continuing vitality of the Supreme Court's decision in Wooley v. Maynard, 430 U.S. 705 (1977), we reverse and remand.
At the motion-to-dismiss stage, "[w]e must accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012) (quotations omitted). We recite the facts as alleged in Mr. Cressman's complaint and in the light most favorable to him.
A. Factual History
1. Mr. Cressman's Beliefs and Oklahoma's Standard License Plate
Mr. Cressman is a citizen of Oklahoma who "adheres to historic Christian beliefs." Appx. at 188. He "believes there is only one true God" and that it is "a sin . . . to honor or acknowledge anyone or anything as God besides the one true God." Id. He refrains from adopting or endorsing any message he believes might imply his approval of contrary beliefs, such as that God and nature are one, that other deities exist, or that "animals, plants, rocks, and other natural phenomena" have souls or spirits. Id. at 189.
In August 2008, Mr. Cressman learned that the State of Oklahoma had redesigned its standard vehicle license plate and intended to introduce it in January 2009. The redesigned plate included an image depicting a sculpture of a Native American shooting an arrow toward the sky. Upon seeing the image, Mr. Cressman "discerned that [it] depicted and communicated Native American religious beliefs in contradiction to his own Christian religious beliefs." Id. at 190.
More specifically, he learned that the image depicted a sculpture by artist Allan Houser titled "Sacred Rain Arrow." According to the complaint, the sculpture is based on a Native American legend in which a warrior convinced a medicine man to bless his bow and arrows during a time of drought. The warrior shot an arrow into the sky, hoping the "spirit world" or "rain god" would answer the people's prayers for rain. Id.
In Mr. Cressman's view, the image "retells the story of a Native American who believes in sacred objects[, ] in multiple deities and in the divinity of nature[, ] and in the ability of humans to use sacred objects to convince gods to alter nature." Id. at 191. He alleges that viewers of the image "will understand that [it] communicates ideas and messages about Oklahoma, about Native American culture and practices, and about Oklahoma's connection to these Native American practices." Id. at 190. The "message, connotation, and purpose of the 'Sacred Rain Arrow' sculpture—and the license plate with the image of that sculpture—[are] antithetical to [Mr.] Cressman's sincerely-held religious beliefs." Id. at 191. He does not want to display the image on his vehicles and would rather "remain silent with respect to images, messages, and practices that he cannot endorse or accept." Id.
2. Efforts to Avoid Displaying the Image
To avoid displaying the image, Mr. Cressman purchased a specialty license plate, which cost $37 more than the standard plate and had a $35 renewal fee. He then purchased a cheaper specialty license plate, which cost $18 more than the standard plate, plus $16.50 for renewal. Eventually, he decided he no longer wanted to pay additional fees for a specialty license plate. Instead, he wanted to cover up the image, without obscuring letters, tags, or identifying markers on the license plate.
Mr. Cressman visited the Motor Vehicle Division of the Oklahoma Tax Commission in Oklahoma City. He asked a clerk whether he could legally cover up the image on the license plate. The clerk informed him he probably would be ticketed if he did so and suggested that Mr. Cressman talk to an "enforcing officer" at the Department of Public Safety. Id. at 192.
Mr. Cressman then spoke with Paula Allen, "the official in charge of interpreting policies for the Department of Public Safety." Id. He explained his objection to the license plate image and asked her whether he could cover it up. Ms. Allen said that Okla. Stat. tit. 47, § 4-107 ("Section 4-107") prohibited him from doing so. She confirmed this with an Oklahoma Highway Patrol official.
After this meeting, Mr. Cressman reviewed Section 4-107, as well as Okla. Stat. tit. 47, § 1113 ("Section 1113"). Section 1113(A)(2) requires that "[t]he license plate, decal and all letters and numbers shall be clearly visible at all times." It is a violation of Section 1113 to operate "a vehicle in [Oklahoma] . . . upon which the license plate is covered, overlaid or otherwise screened with any material, whether such material be clear, translucent, tinted or opaque." Id. § 1113(A)(2). Mr. Cressman further determined that a violation of Section 1113 is a misdemeanor with a fine of up to $300. See id. § 1151(I).
After his research, Mr. Cressman determined that Ms. Allen was correct that covering up the image would be illegal. Accordingly, he pays additional fees to display specialty license plates on two vehicles registered in Oklahoma. He alleges this situation is "intolerable . . . because he does not want to incur extra expense to avoid expressing a message contrary to his religious beliefs." Appx. at 195.
In March 2010, he sent letters to the Oklahoma Attorney General and Assistant Attorney General, the Chief of the Oklahoma Highway Patrol, and the Secretary of Safety and Security/Commissioner of Public Safety. The letters explained his objections to the license plate image and asserted that forcing him to display the image violated his constitutional rights. Mr. Cressman requested that these officials provide a remedy within three weeks; he received no responses.
B. Procedural History
Mr. Cressman filed a 42 U.S.C. § 1983 civil rights lawsuit in the United States District Court for the Western District of Oklahoma. The amended complaint names six defendants: Ms. Allen, in her individual and official capacity as a Licensing Services Hearing Officer; Michael C. Thompson, in his official capacity as the Secretary of Safety and Security/Commissioner of Public Safety; Kerry Pettingill, in his official capacity as the Chief of the Oklahoma Highway Patrol; and Thomas Kemp Jr., Jerry Johnson, and Dawn Cash, in their official capacities as members of the Oklahoma Tax Commission.
Mr. Cressman alleged violations of his rights to freedom of speech, due process, and the free exercise of religion under the First and Fourteenth Amendments to the United States Constitution. In conjunction with his complaint, he filed a motion for a preliminary injunction to enjoin the Defendants from enforcing Section 1113. Alternatively, he sought to compel the Defendants to provide him with specialty license plates at no additional cost.
The Public Safety Defendants moved to dismiss the complaint. Their motion argued, inter alia, that Mr. Cressman failed to state a claim upon which relief could be granted and that he lacked Article III standing. The Tax Commission Defendants separately moved to dismiss the complaint.
The district court dismissed Mr. Cressman's federal constitutional claims.Although it determined Mr. Cressman had Article III standing, the court ruled that he failed to state a "compelled speech" claim under the First Amendment. This failure, according to the district court, was fatal to the rest of his federal claims, as well as his motion for a preliminary injunction.
On May 16, 2012, the district court entered judgment dismissing Mr. Cressman's federal constitutional claims with prejudice as to all the Defendants. Mr. Cressman filed a timely notice of appeal.
Two issues are before us on appeal. First, the Defendants assert that Mr. Cressman lacks Article III standing to sue them in their official capacities. Our review of this issue is de novo. See Roe No. 2 v. Ogden, 253 F.3d 1225, 1228 (10th Cir. 2001). Second, Mr. Cressman argues that the district court erred in dismissing his complaint for failure to state a First Amendment compelled speech claim. See Fed. R. Civ. P. 12(b)(6). We review a Rule 12(b)(6) dismissal de novo. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).
We start with standing because it is a jurisdictional issue. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007); Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 592-93 (10th Cir. 1996).
A. Article III Standing
The Defendants assert that Mr. Cressman lacks Article III standing to sue them in their official capacities. Mr. Cressman, "as the party seeking to invoke federal jurisdiction, bear[s] the burden of establishing standing." Petrella v. Brownback, 697 F.3d 1285, 1292 (10th Cir. 2012). "When evaluating a plaintiff's standing at [the motion to dismiss] stage, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc) (quotations ...