Phelps-Roper v. Koster

• Decision Date: 16 August 2010
• Docket Number: No. 06-4156-CV-C-FJG,06-4156-CV-C-FJG
• Citation: 734 F.Supp.2d 870
• Parties: Shirley PHELPS-ROPER, Plaintiff, v. Chris KOSTER, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

734 F.Supp.2d 870

Shirley PHELPS-ROPER, Plaintiff,

v.Chris KOSTER, et al., Defendants.

No. 06-4156-CV-C-FJG.

United States District Court,

W.D. Missouri,

Central Division.

Aug. 16, 2010.

Anthony E. Rothert, American Civil Liberties Union of Eastern MO, St. Louis, MO, Benicia Baker-Livorsi, St. Charles, MO, for Plaintiff.

Jeremiah J. Morgan, Missouri Attorney General's Office, Michael G. Berry, Berry Wilson, LLC, Harvey M. Tettlebaum, Husch Blackwell Sanders, LLC, Jefferson City, MO, Maureen C. Beekley, Attorney General's Office, St. Louis, MO, Todd Nielsen, Kansas City, MO, James F. Peterson, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Defendants.

ORDER

FERNANDO J. GAITAN, JR., Chief Judge.

Pending before the Court are (1) Plaintiff's Motion for Summary Judgment (Doc. No. 183); (2) Defendants Koster, Nixon and Replogle's Motion for Partial Summary Judgment (Doc. No. 185); and (3) Defendants' Motion for Leave to File Amended Answer (Doc. No. 265). All will be considered below.

I. Background

Plaintiff's action is a Section 1983 claim, seeking equitable relief. The counts pending against Defendants Koster, Nixon and Replogle are Counts I, II, III, IV, XII, XIII, and XIV. Count I seeks a declaration that Section 578.501 is unconstitutional under the free speech provisions of the First Amendment; Count II seeks a declaration that Section 578.502 is unconstitutional under the free speech provisions of the First Amendment; Count III seeks a declaration that Section 578.501 is unconstitutional under the Free Exercise Clause of the First Amendment; Count IV seeks a declaration that Section 578.502 is unconstitutional under the Free Exercise Clause of the First Amendment; Count XII seeks a declaration that Sections 578.502 and 578.503 violate Missouri statutory provisions as to the effective date of these statutes; Count XIII seeks a declaration that Sections 578.502 and 578.503 violate separation of powers provisions of the Missouri Constitution; and Count XIV seeks a declaration that Sections 578.502 and 578.503 are unconstitutionally vague while failing to provide due process under the Fourteenth Amendment.

Counts V and VI were dismissed without prejudice on January 28, 2010, and Count IX was dismissed on April 15, 2010. Counts VII, VIII, X, and XI challenge the application of the funeral protest statutes by local law enforcement officials named as defendants. Plaintiff and those defendants have moved for entries of consent judgments ( see Doc. No. 27 (Defendant Goodwin), Doc. No. 129 (Defendants Laclede County, Wright, and Wrinkle), and Doc. No. 144 (Defendant Blackburn)). This Court has deferred entering the consentjudgments until the remainder of the case is resolved.

Plaintiff seeks summary judgment as to all remaining counts in her Complaint. Defendants Nixon, Koster, and Replogle seek partial summary judgment as to Counts XII, XIII and XIV ( see Doc. No. 185). On June 8, 2010, this Court held oral argument on Plaintiff's motion for summary judgment as to her free speech and free exercise of religion claims.

II. Facts

This case involves three Missouri statutes enacted in 2006: R.S.Mo. §§ 578.501, 578.502, and 578.503. In their current versions, the statutes read as follows:

578.501. Funeral protests prohibited, when-citation of law-definitions

1. This section shall be known as "Spc. Edward Lee Myers' Law".

2. It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.

3. For the purposes of this section, "funeral" means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.

R.S.Mo. § 578.501 (emphasis in original).

578.502. Funeral protests prohibited, when-funeral defined

1. This section shall be known as "Spc. Edward Lee Myers' Law".

2. It shall be unlawful for any person to engage in picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.

3. For purposes of this section, "funeral" means the ceremonies, processions, and memorial services held in connection with the burial or cremation of the dead.

R.S.Mo. § 578.502 (emphasis in original).

578.503. Contingent effective date

The enactment of section 578.502 shall become effective only on the date the provisions of section 578.501 are finally declared void or unconstitutional by a court of competent jurisdiction and upon notification by the attorney general to the revisor of statutes.

R.S.Mo. § 578.503.

Plaintiff is a member of Westboro Baptist Church (hereinafter "WBC"). Plaintiff and other church members believe that Americans have disregarded the commandments of God by engaging in sin and that God is thus exercising his wrath by killing Americans. In particular, Plaintiff and other members of WBC perceive the homosexual movement as especially dangerous. Plaintiff and other members of the WBC express their religious beliefs by engaging in picketing and protesting. Since approximately 1993, Plaintiff and other members of WBC have picketed andprotested near funerals of gay persons, persons who died from AIDS, persons whose lifestyles they believed to be sinful but are touted as heroic upon their death, and persons whose actions while alive had supported homosexuality. Plaintiff believes that the public platform of funerals is the only place where her religious message can be delivered in a timely and relevant manner to a certain audience. Plaintiff believes she is also compelled to warn society of God's wrath.

In 2005, Plaintiff and other members of WBC began picketing near the funerals of American soldiers. Plaintiff indicates that the pickets near funerals advance church members' message of God's hatred of America for its tolerance of homosexuality and other alleged evils. The signs carried by Plaintiff and other church members express messages such as "God Hates Fags," "Divorce Plus Remarriage Equals Adultery; God Hates Adultery," "God Hates the USA," "America is Doomed," "Thank God for Dead Soldiers," "God is America's Terror," "Priests Rape Boys," "Fags Doom Nations," and "9-11: Gift From God." Plaintiff indicates that picketing funerals is integral because it "connect[s] that dot from the disobedience and rebellion to the outcome, the consequence of it [.]" Doc. No. 184, Ex. 1, ¶ 7.

Plaintiff indicates that all of her pickets and protests are peaceful and conducted on public streets and sidewalks. Plaintiff testifies she has no desire to disrupt any funeral proceeding or to interfere with ingress to or regress from any location where a funeral is held. She indicates her pickets and protests end when a funeral begins. Plaintiff and other church members have engaged in more than 42,675 pickets, including more than 530 pickets associated with funerals. Plaintiff asserts that aside from an incident in Topeka in 1993 where eight picketers were assaulted and taken to the hospital and isolated minor incidents since, the protests have not provoked immediate violent reactions.¹

Prior to February 23, 2006, the State of Missouri did not have any statute addressing protests or pickets near funerals or memorial services. On August 5, 2005, Plaintiff and other church members held a picket near the funeral of Spc. Edward Lee Myers in St. Joseph, Missouri. Thereafter, Missouri Senate Majority Leader Charlie Shields introduced the bill that created the original R.S.Mo. § 578.501. On February 23, 2006, the Secretary of the Senate and the Speaker of the House signed the bill and sent it to the Governor for signing. The same day, acting governor Senator Michael Gibbons signed the bill with then Governor Matt Blunt's consent.²

On May 9, 2006, the Senate adopted a Senate Substitute which repealed R.S.Mo. § 578.501, as enacted on February 23, 2006, and replaced it with the current R.S.Mo. §§ 578.501, 578.502, and 578.503. Truly Agreed to and Finally Passed SenateSubstitute for Senate Committee Substitute for House Committee Substitute for H.B. 1026 (Ex. 14 to Doc. No. 184) at 3-4. On May 12, 2006, the Senate Substitute was truly agreed to and finally passed by the House. It was signed by Governor Blunt on July 5, 2006. On July 5, 2006, Governor Blunt issued an executive message regarding his signing of House Bill 1026. Missouri Governor's Message (July 5, 2006); Ex. 15 to Doc. No. 184. He described the new law as "enacting additional restrictions on protests at funerals." Id. According to the Governor's message, "The law expands existing protections for mourners to those funerals held somewhere other than church, cemeteries[,] or funeral homes. For example funerals and services held in local schools or parks would also protected [sic] by the new law." Id.

Plaintiff indicates that, in an attempt to abide by the law, she has contacted local law enforcement officials in advance of planned pickets and protests to determine where she may picket without being in violation of R.S.Mo. § 578.501. By way of example, Plaintiff cites in her statement of facts the varying interpretations of Sections 578.501 and 578.502 by officials in McDonald County, Clay County, Greene County, ...