Phelps-Roper v. Koster

• Decision Date: 04 March 2016
• Docket Number: 15–1102.,14–3266,Nos. 14–3058,s. 14–3058
• Citation: 815 F.3d 393
• Parties: Shirley PHELPS–ROPER, Plaintiff–Appellant v. Chris KOSTER, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellee Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellees Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants Shirley Phelps–Roper, Plaintiff–Appellee v. Chris Koster, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellant Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellants Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants Shirley Phelps–Roper, Plaintiff–Appellant v. Chris Koster, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellee Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellees Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

815 F.3d 393

Shirley PHELPS–ROPER, Plaintiff–Appellant

v.Chris KOSTER, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellee

Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant

Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellees

Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants

Shirley Phelps–Roper, Plaintiff–Appellee

v.Chris Koster, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellant

Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant

Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellants

Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants

Shirley Phelps–Roper, Plaintiff–Appellant

v.Chris Koster, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellee

Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant

Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellees

Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants.

Nos. 14–3058

14–3266

15–1102.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 22, 2015.

Filed: March 4, 2016.

Anthony E. Rothert, ACLU of Missouri Foundation, St. Louis, MO, argued (Grant R. Doty, Andrew McNulty, ACLU of Missouri Foundation, St. Louis, MO, Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO, Benicia Livorsi, St. Charles, MO, on the brief), for appellant/cross-appellee.

Jeremiah J. Morgan, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellees/cross-appellants Chris Koster, Jeremiah W. Nixon, and Ronald K. Repogle.

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.

BYE

, Circuit Judge.

Shirley Phelps–Roper appeals the district court's adverse judgments on her due process claim as well as the court's award of attorneys' fees. On appeal, Phelps–Roper argues the district court erred in (1) entering adverse judgments on her due process claim in light of Missouri repealing the statutes she challenged, and (2) reducing her award of attorneys' fees. We conclude that the district court erred when it failed to dismiss Phelps–Roper's due process claim as moot, and it abused its discretion when it calculated attorneys' fees. We reverse in part, vacate in part, and remand.

I

Phelps–Roper is a member of the Westboro Baptist Church and participates in funeral protests to publicize her religious beliefs—namely, that God is punishing America for its sins, including tolerance of homosexuality. Phelps–Roper initiated this action on July 21, 2006, against Missouri state and county officials¹ (the Officials) after the Missouri General Assembly enacted statewide restrictions on pickets and protests near funerals and funeral processions. Phelps–Roper claimed the funeral protest statutes, Missouri Revised Statutes §§ 578.501

, 578.502, and 578.503, violated her constitutional rights of free speech, freedom of association, and the free exercise of religion.

With her complaint, Phelps–Roper filed a motion for a preliminary injunction against enforcement of § 578.502

. After full briefing, the district court denied Phelps–Roper's motion for a preliminary injunction. Phelps–Roper filed an interlocutory appeal and a panel of this Court reversed the district court's denial of the preliminary injunction. Phelps–Roper v. Nixon, 509 F.3d 480 (8th Cir.2007). The Officials filed a petition for rehearing. This Court granted panel rehearing and issued a modified opinion again reversing the denial of the preliminary injunction. Phelps–Roper v. Nixon, 545 F.3d 685 (8th Cir.2008), reh'g and reh'g en banc denied, No. 07–1295 (8th Cir. Jan. 7, 2009), overruled by Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678, 691 (8th Cir.2012) (en banc) (holding the government's interest in protecting citizens from unwanted speech extends beyond the privacy of the home). Based on these results, the parties do not dispute Phelps–Roper's complete success in litigation from 2006–when she initiated this lawsuit—to January 2009—when this Court denied rehearing.

On remand and after the district court entered a preliminary injunction, Phelps– Roper amended the complaint twice to add additional defendants² and to add five more counts—for a total of fourteen counts—which alleged the following: Counts I and II alleged violations of the Free Speech Clause; Counts V, VI, and IX alleged violations of Freedom of Association Clause; Counts VII, VIII, X, and XI alleged "as-applied" challenges to the statutes; and Counts III, IV, XII, XIII, and XIV alleged violations of the Free Exercise Clause, Due Process Clause, and state law.

Thereafter both parties filed cross-motions for summary judgment. During discovery but before trial, Phelps–Roper voluntarily dismissed without prejudice Counts V, VI, and IX; and entered into consent judgments with the non-State defendants.³ In the consent judgments, Phelps–Roper agreed to waive any claim for attorneys' fees.

Two weeks before trial, the district court granted in part and denied in part as moot Phelps–Roper's motion for summary judgment. Specifically, the district court found both §§ 578.501

and 578.502 unconstitutional under the Free Speech Clause and granted Phelps–Roper summary judgment on Counts I and II, but denied as moot Counts III, IV, VII, VIII, X, XI, XII, XIII, and XIV. The Officials appealed to this Court.

On appeal we affirmed in part and reversed in part the district court's order. In particular we held § 578.501

unconstitutional but determined § 578.502 would be constitutional after severing the term "processions." Phelps–Roper v. Koster, 713 F.3d 942, 953–54 (8th Cir.2013). We remanded the case to the district court to address the remaining claims.

On remand, Counts IV, XII, XIII, and XIV remained. Phelps–Roper voluntarily dismissed without prejudice all but her due process claim (Count XIV). The parties filed cross-motions for summary judgment on the due process claim. On March 10, 2014, the district court granted the Officials' motion for summary judgment and subsequently entered judgment. Phelps–Roper filed a motion to amend or alter judgment pursuant to Rule 59(e) requesting the district court to clarify the judgment to include: (1) § 578.501

is unconstitutional and unenforceable; and (2) whether the district court dismissed only Count XIV or the case entirely.

On August 28, 2014, the State of Missouri repealed the statutes at issue while Phelps–Roper's Rule 59(e) motion remained pending in district court. Five days later the district court entered an order denying Phelps–Roper's motion. That same day the district court entered a second judgment on the due process claim. One week later, Phelps–Roper filed a Rule 60(b) motion for relief from judgment requesting the district court to vacate the first judgment in light of Missouri's repeal rendering Count XIV moot. The district court denied Phelps–Roper's motion for Rule 60(b) relief.

Phelps–Roper filed a motion for attorneys' fees requesting an award of $298,841.25 in fees and $4,044.30 in expenses. The district court awarded Phelps–Roper reduced attorneys' fees in the amount of $113,425.54 and full expenses. The district court reached this amount by awarding Phelps–Roper full fees from 2006 until January 2009—equating to $65,325.00—for obtaining a preliminary injunction, and 2/14th of the remaining fees sought—amounting to $30,899.29 of the remaining $216,295.00—because "plaintiff ultimately prevailed on two of fourteen claims in her second amended complaint." The district court did not explain on which two of the fourteen claims Phelps–Roper had prevailed.

Phelps–Roper timely appealed the district court's order awarding partial attorneys' fees, the district court's orders denying her due process claim,⁴ and the district court judgments of March 10, 2014, and September 2, 2014. The Officials filed a cross-appeal but conceded at oral argument they abandoned the cross-appeal. The cross-appeal is therefore dismissed. See C.I.R. v. Riss, 374 F.2d 161, 165 (8th Cir.1967)

(dismissing an abandoned cross-appeal).

II

A

Phelps–Roper first contends the district court erred in entering adverse judgments on her due process claim because the State of Missouri repealed the statutes in question and thus mooted this claim. "We review the district court's grant of summary judgment de novo." O'Neal v. Remington Arms Co., 803 F.3d 974, 978 (8th Cir.2015)

. We also review questions of justiciability de novo. St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 484 (8th Cir.2006).

"The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy." Ringo v. Lombardi, 677 F.3d 793, 796 (8th Cir.2012)

(quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) ). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Id. (alteration in original). Therefore, "[w]hen a case ... no longer presents an actual, ongoing case or controversy, the case is moot and the ...