Phelps-Roper v. Taft

• Decision Date: 23 March 2007
• Docket Number: No. 1:06 CV 2038.,1:06 CV 2038.
• Parties: Shirley L. PHELPS-ROPER, Plaintiff, v. Bob TAFT, in his Official Capacity as the Governor of the State of Ohio, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

523 F.Supp.2d 612

Shirley L. PHELPS-ROPER, Plaintiff, v. Bob TAFT, in his Official Capacity as the Governor of the State of Ohio, et al., Defendants.

No. 1:06 CV 2038.

United States District Court, N.D. Ohio, Eastern Division.

March 23, 2007.

COPYRIGHT MATERIAL OMITTED

Jeffrey M. Gamso, Carrie L. Davis, ACLU of Ohio Foundation, Cleveland, OH, for Plaintiff.

Peggy W. Corn, Office of the Attorney General-Constitutional Offices State of Ohio, Columbus, OH, Julie Kelley Cannatti, Office of the Attorney General, David G. Lambert, Frederick W. Whatley, Office of the Prosecuting Attorney, Lisa B. Forbes, Vorys, Sater, Seymour & Pease, Cleveland, OH, Timothy Joseph Degeeter, Parma, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

DONALD C. NUGENT, District Judge.

This matter comes before the Court upon cross-motions for summary judgment. In particular, currently pending before the Court is a Motion for Summary Judgment filed by Defendants Ohio Governor Bob Taft and Attorney General Jim Petro (collectively the "State Defendants")¹ (ECF # 18), a Motion for Summary Judgment filed by Defendant Cuyahoga County Prosecutor William D. Mason (ECF # 19) and a cross-Motion for Summary Judgment filed by Plaintiff Shirley Phelps-Roper (ECF # 20).

I. BACKGROUND

In the instant case, Plaintiff filed a two-count Complaint against the State Defendants and Defendant Mason, seeking declaratory and injunctive relief. (ECF # 1.) Plaintiff states that, as a member of the Westboro Baptist Church ("WBC"), she has certain religious beliefs that she wishes to express by protesting and engaging in "other protest activities" within 300-feet of funeral services, burial services, and funeral processions. (Id. at ¶ 2.) Plaintiff alleges that she has protested at funerals in the past, in various states, and wishes to do so in Ohio and other states in the future. (Id.) Plaintiff describes her beliefs and protest activities as follows:

[C]hurch members, including Plaintiff, believe that homosexuality is a sin and abomination. They further believe that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. Because God is omnipotent to cause or prevent tragedy, they believe that when tragedy strikes it is indicative of God's wrath.

Plaintiff, along with other church members of WBC, has picketed at funerals of American soldiers killed in Afghanistan and Iraq, in the sincere belief that protesting at funerals is an effective way to convey the message of the Westboro Baptist Church.

(Id. at ¶¶ 12-13.) Plaintiff argues, however, that her right to protest at future funerals will be effectively prevented or substantially hindered by an Ohio statute, namely Ohio Revised Code Section 3767.30. (Id. at ¶ 2.)

The statute, entitled "Picketing or protesting during funeral or burial services," provides:

Every citizen may freely speak, write, and publish the person's sentiments on all subjects, being responsible for the abuse of the right, but no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of an actual funeral or burial service at that place. No person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred feet of any funeral procession.

R.C. § 3767.30. The statute defines "other protest activities" as "any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession." Id.

In Count I of the Complaint, Plaintiff claims that R.C. § 3767.30 is an unconstitutional prior restraint on speech. (Id. at ¶ 18.) Plaintiff alleges that the statute's provisions are facially content-neutral, yet overbroad in their time, place, and manner regulations of speech because they are not narrowly tailored to serve a significant government interest and do not leave open alternative channels for communication. (Id.) To that end, Plaintiff asserts that R.C. § 3767.30 abridges her freedom of speech in violation of the First and Fourteenth Amendments to the United States Constitution. (Id. at ¶ 19.)

In Count II of the Complaint, Plaintiff contends that R.C. § 3767.30 is "an overbroad criminalization of speech, in that it imposes an unreasonable time restriction on speech, i.e. one hour before, during, and after a funeral or burial service." (Id. at ¶ 21.) Plaintiff further asserts that the statute is overbroad "in that it imposes unreasonable space restrictions on speech, i.e., within 300 feet of a funeral service or burial service, or funeral procession." (Id. at ¶ 22.) In this way, Plaintiff asserts that R.C. § 3767.30 chills her freedom of speech in violation of the First and Fourteenth Amendments to the United States Constitution. (Id. at ¶ 23.)

Based upon Counts I and II, Plaintiff requests, inter alia, that the Court make a declaration that R.C. § 3767.30 is unconstitutional, and issue preliminary and permanent injunctions enjoining Defendants, their employees, agents, successors, and all other acting in concert or participation with them, from enforcing the statute. (Id. at 6.) Plaintiff also seeks an award of costs, including attorney fees. (Id.)

In conjunction with the Complaint, Plaintiff filed a Motion for a Preliminary Injunction. (ECF # 2.) Although Defendants filed Memoranda in Opposition to the Motion (ECF # 5, ECF # 7) and Plaintiff has filed a Reply Brief in support of the Motion (ECF # 10), the parties subsequently agreed that the issues raised by the Motion could be resolved on cross-motions for summary judgment (ECF # 13). Hence, currently before the Court is the Motion for Summary Judgment filed by the State Defendants (ECF # 18), a Motion for Summary Judgment filed by Defendant Mason (ECF # 19), and a cross-Motion for Summary Judgment filed by Plaintiff (ECF # 20). The Motions have been briefed fully and are now ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c). The burden of showing the absence of any such "genuine issue" rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED.R.CIV.P. 56(c)). A fact is. "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). In most civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. 2505. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989).

Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The nonmoving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir.1995). FED. R. CIV. P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate. Id.

Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred with the Ninth Circuit that "`it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary...