McQueary v. Stumbo
| Decision Date | 26 September 2006 |
| Docket Number | Civil Action No. 06-CV-24-KKC. |
| Citation | 453 F.Supp.2d 975 |
| Parties | Bart McQUEARY, Plaintiff, v. Gregory D. STUMBO, in his Official Capacity as Attorney General of the Commonwealth of Kentucky, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
David A. Friedman, Fernandez, Friedman, Grossman & Kohn, Lili Solinger Lutgens, ACLU of Kentucky, Louisville, KY, for Plaintiff.
D. Brent Irvin, Office of Attorney General, Frankfort, KY, for Defendant.
This matter is before the Court on the Motion for Preliminary Injunction (Rec. No. 2) of the Plaintiff, Bart McQueary; the Motion for Judgment on the Pleadings (Rec. No. 8) of the Defendant, Gregory D. Stumbo, in his official capacity as Attorney General of the Commonwealth of Kentucky (the "Attorney General"); and McQueary's Motion to Consolidate the hearing on the Motion for Preliminary Injunction with the trial on the merits of this matter (Rec. No. 17).
With his Complaint, McQueary asserts that Sections 5(1)(b) and (c) of House Bill 333 (HB 333) and Senate Bill 93 (SB 93)(together, the "Act"), which Kentucky Governor Ernie Fletcher signed into law on March 27, 2006, infringe upon his right to protest at funerals under the First and Fourteenth Amendments to the Constitution and are facially unconstitutional. (Rec. No. 1, Complaint ¶¶ 1-2, 18). HB 333 and SB 93 are identical in all relevant respects.
The Act begins with the following explanation of its purpose:
WHEREAS, certain despicable individuals have been disrupting the funerals of soldiers who died while serving in the United States Armed Forces; and
WHEREAS, these disruptions have taken such forms as shouting insults at the parents of the fallen; and
WHEREAS, the military dead and their families deserve respect and compassion; and
WHEREAS, all mourners should be left in peace;
2006 Kentucky Laws, Ch. 50 (S.B.93)(effective March 27, 2006).
The Act's relevant provisions are set forth below.
Section 1 of the Act provides that a person is guilty of disorderly conduct in the first degree when he or she:
(a) In a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof:
1. engages in fighting or in violent, tumultuous, or threatening behavior;
2. makes unreasonable noise; or
3. creates a hazardous or physically offensive condition by any act that serves no legitimate purpose; and
(b) Acts in a way described in paragraph (a) of this subsection within three hundred (300) feet of a:
1. Cemetery during a funeral or burial;
2. Funeral home during the viewing of a deceased person;
3. Funeral procession; or
4. Funeral or memorial service;1 and
c) Knows that he or she is within three hundred (300) feet of an occasion described in paragraph (b) of this subsection.
Section 3 of the Act provides that a person is guilty of disrupting meetings and processions in the first degree when:
with intent to prevent or disrupt a funeral or burial, funeral home viewing of a deceased person, funeral procession, or funeral or memorial service for a deceased person, he or she does any act tending to obstruct or interfere with it physically or makes any utterance, gesture, or display designed to outrage the sensibilities of the group attending the occasion.
Section 5 of the Act provides the following:
(1) A person is guilty of interference with a funeral when he or she at any time on any day:
(a) Blocks, impedes, inhibits, or in any other manner obstructs or interferes with access into or from any building or parking lot of a building in which a funeral, wake, memorial service, or burial is being conducted, or any burial plot or the parking lot of the cemetery in which a funeral, wake, memorial services, or burial is being conducted;
(b) Congregates, pickets, patrols, demonstrates, or enters on that portion of a public right-of-way or private property that is within three hundred (300) feet of an event specified in paragraph (a) of this subsection; or
(c) Without authorization from the family of the deceased or person conducting the service, during a funeral, wake, memorial service, or burial:
1. Sings, chants, whistles, shouts, yells, or uses a bullhorn, auto horn, sound amplification equipment or other sounds or images observable to or within earshot of participants in the funeral, wake, memorial service, or burial; or
2. Distributes literature or any other item.
(2) Interference with a funeral is a Class B misdemeanor.
McQueary challenges only Section 5(1)(b) and (c) of the Act. He does not challenge any other provision of the Act. Specifically, he asserts that Sections 5(1)(b) and (c) are unconstitutional prior restraints on speech and are not narrowly tailored to serve a significant government interest and do not leave open alternative channels for communication. (Rec. No. 1, Complaint 1(17). He further asserts that Sections 5(1)(b) and (c) and are overbroad. (Rec. No. 1, Complaint ¶¶ 19-20, 24). Finally, he asserts that Section 5(1)(c) unconstitutionally makes speech on public property contingent upon the approval of a private party. (Rec. No. 1, Complaint ¶ 22).
McQueary asserts that he has picketed funerals with the Westboro Baptist Church three times in Kentucky. (Rec. No. 1, Complaint ¶ 10, 21). He states that such protests are an effective way to convey the church's message. (Rec. No. 1, Complaint ¶ 11). He states he wants to protest at future funerals but fears he will be prosecuted for violating Sections 5(1)(b) and (c) of the Act. (Rec. No. 1, Complaint ¶ 12).
McQueary states that he wishes to congregate, picket, or demonstrate on that portion of a public right-of-way that is within 300 feet of a funeral, wake, memorial service or burial2 in a manner that does not, and is not intended to disrupt the event. (Rec. No. 1, Complaint ¶ 13).
McQueary further wishes to make sounds and display images observable to or within earshot of funeral participants, in a manner that does not, and is not intended to, disrupt the funeral. McQueary wishes to make these sounds and display these images without seeking or obtaining authorization from the family of the deceased or person conducting the funeral. (Rec. No. 1, Complaint ¶ 14). McQueary states that he also wishes to distribute literature in a non-disruptive manner without first obtaining the permission of the family of the deceased or person conducting the funeral. (Rec. No. 1, Complaint ¶ 15).
McQueary moves for a preliminary injunction (Rec. No. 2) enjoining the Attorney General from enforcing Sections 5(1)(b) and (c). The Attorney General filed a Counterclaim (Rec. No. 6), asking the Court to declare that the provisions are valid and moves, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings on his Counterclaim. (Rec. No. 8).
When deciding whether to issue a preliminary injunction, a district court should balance: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury if the injunction is not issued; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 361, 163 L.Ed.2d 68 (2005). In First Amendment cases, the first factor will often be determinative. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). In this case, as in most First Amendment cases, the decision of whether to grant the requested injunction turns on McQueary's likelihood of success on the merits. Id.
Federal Rule 12(c) provides that, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). Like a Rule 12(b)(6) motion, a Rule 12(c) motion tests the legal sufficiency of the plaintiffs complaint. See Scheid v. Fanny Farmer Candy Shops Inc., 859 F.2d 434, 436 n. 1 (6th Cir.1988). When deciding the motion, "[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996).
Neither party has requested a hearing on this matter. Both parties agree that, as a facial challenge to the provisions at issue, this matter involves only issues of law and no issues of fact. In McQueary's Motion to Consolidate the hearing on the Motion for Preliminary Injunction with the trial on the merits (Rec. No. 17), McQueary states that the absence of any factual disputes in this matter makes a hearing unnecessary. After reviewing the record, the Court finds that an evidentiary hearing will serve no purpose and that this matter may be decided based on the pleadings. Thus, McQueary's Motion to Consolidate the hearing on his motion with the trial on the merits will be denied as moot, the Court having decided that no hearing on this motion is necessary.
In determining McQueary's likelihood of success on the merits, the Court will first address McQueary's facial challenge to Sections 5(1)(b) and (c) on the basis that the provisions are overbroad. The "over-breadth doctrine provides an exception to the traditional rules of standing and allows parties not yet affected by a statute to bring actions under the First Amendment based on a belief that a certain statute is so broad as to `chill' the exercise of free speech and...
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