Phelps v. Hamilton

• Decision Date: 02 July 1993
• Docket Number: No. 93-4042-SAC.,93-4042-SAC.
• Citation: 828 F. Supp. 831
• Parties: Fred W. PHELPS and Edward F. Engel, Plaintiffs, v. Joan HAMILTON, in her official capacity as District Attorney, Defendant.
• Court: U.S. District Court — District of Kansas

828 F. Supp. 831

Fred W. PHELPS and Edward F. Engel, Plaintiffs, v. Joan HAMILTON, in her official capacity as District Attorney, Defendant.

No. 93-4042-SAC.

United States District Court, D. Kansas.

July 2, 1993.

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Elizabeth M. Phelps, Jonathan B. Phelps, Phelps — Chartered, Topeka, KS, for plaintiffs.

Carol R. Bonebrake, Office of the Atty. Gen., Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the parties' motions for summary judgment. The plaintiffs bring this civil rights action challenging the constitutionality of the Kansas criminal defamation statute, K.S.A. 21-4004, and the defendant's prosecutions under that statute. Approximately one month after bringing their suit, the plaintiffs filed a motion for preliminary injunction. On the agreement of the parties, this motion is still pending.

Nature of the Suit

The plaintiffs seek from their suit an order that declares K.S.A. 21-4004 unconstitutional on its face and as applied to the plaintiffs; enjoins, temporarily and permanently, the defendant from further prosecutions under K.S.A. 21-4004; and awards costs and fees pursuant to 42 U.S.C. § 1988. As alleged in the complaint, the plaintiffs' legal theories for such relief are essentially three. First, K.S.A. 21-4004 is unconstitutional on its face, because it is overbroad and allows for the punishment of protected speech. Second, K.S.A. 21-4004 is unconstitutional as applied to the plaintiffs in the threatened and pending prosecutions, because the plaintiffs' protected speech is the subject of these prosecutions. Last, the pending criminal cases against the plaintiff Phelps are the result of bad faith prosecutions. The plaintiffs specifically accuse the defendant of filing these charges in political retribution for plaintiffs' protected speech, in response to community pressure, and out of personal animosity toward the plaintiffs.

Procedural History

These summary judgment motions were filed upon the court's suggestion for them. After receiving the plaintiffs' motion for a preliminary injunction and the defendant's response, the court held a telephone conference on April 28, 1993. The plaintiffs asked to postpone the hearing on their preliminary injunction motion to allow for the defendant's response to their discovery requests and for the completion of a written transcript of an evidentiary hearing held in a state criminal proceeding. To take full advantage of this continuance, the court asked the parties to submit summary judgment motions on three issues: (1) whether the plaintiff Edward Engel has standing to bring this suit; (2) whether the court should abstain from deciding the plaintiff Fred W. Phelps' challenge, and (3) whether K.S.A. 21-4004 is unconstitutional on its face. The parties filed their motions and responses within the deadlines set by the court. In addition, the defendant filed a reply brief on June 11, 1993, and the plaintiffs filed a supplement to their response on June 21, 1993. Having reviewed the detailed memoranda and exhibits submitted and conducted its own research of the relevant law, the court is ready to rule.

Summary Judgment Standards

If no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law, the court shall grant a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The issue also must be based on a viable legal theory in order to be "genuine." Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987)). An issue of fact is "material" if proof of it might affect the outcome of the lawsuit. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. In effect, the inquiry on a summary judgment motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-12.

The movant's burden under Fed. R.Civ.P. 56 is to specify those portions of "`the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,'" which demonstrate the absence of a genuine issue of fact. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987). Summary judgment will be granted when the movant is able to show it is entitled to judgment as a matter of law based upon the uncontroverted, operative facts.

The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts that show a genuine issue for trial remains and that are supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted). Because its evidence is deemed true and all reasonable inferences are drawn in its favor, the opposing party need come forth with only such evidence from which a fair-minded jury could return a verdict for it. Windon, 805 F.2d at 346.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences. Windon, 805 F.2d at 346.

Uncontroverted Statement of Facts

For purposes of these motions, the court accepts the following facts as uncontroverted:

1. The plaintiffs are citizens of Kansas and residents of Topeka, Kansas. The plaintiff Fred W. Phelps, Sr. is pastor of the Westboro Baptist Church in Topeka, Kansas.

2. The defendant Joan Hamilton is a citizen of Kansas and a resident of Shawnee County, Kansas. After winning the election in the fall of 1992, she assumed the position of District Attorney for the Third Judicial District, Topeka, Kansas on January 11, 1993.

3. On October 24, 1991, the plaintiff Edward F. Engel was indicted by a grand jury for criminal defamation in the District Court of Shawnee County, Kansas. Gene Olander, the District Attorney at the time, appointed Mark Bennett, Jr. as special prosecutor on that case and a companion case. On April 30, 1992, the charges against Engel were dismissed on the prosecution's oral motion.

4. The criminal defamation charges against Engel stemmed from a flier distributed by a local political group having the name, Citizens for Honesty in Government ("CHIG"). The grand jury was formed after a successful petition drive by CHIG. The issues surrounding CHIG and the grand jury petition drive were matters of public interest and concern in the spring and summer of 1991.

5. The plaintiffs characterize themselves as individuals who have voiced their religious and political views and criticisms in various settings and towards many public officials at all political and governmental levels.

6. For the plaintiff Phelps, his platform is principally the condemnation of both homo-sexual conduct and society's tolerance of homosexual conduct. He publicly expresses his controversial message principally through demonstrations and facsimile transmissions. His message and his means of communicating it, as evidenced by the public and media attention that they have drawn, are matters of public interest.

7. In her campaign for district attorney, the defendant promised to fight against crime, hatred, prejudice and Fred Phelps.

8. On February 16, 1993, the defendant filed a complaint against the plaintiff Fred Phelps, Sr. charging him with disorderly conduct in violation of K.S.A. 21-4101. The victim of the alleged conduct occurring in March of 1992 was Jerry Palmer. The court does not know the status of this criminal case.

9. On February 23, 1993, the defendant filed an affidavit and complaint charging Fred Phelps, Sr. with two counts of criminal defamation pursuant to K.S.A. 21-4004. The victim of the alleged false statements made on September 23 and 24, 1992, is Doug Shannon, an officer with the City of Topeka Police Department. The plaintiff Phelps has been arrested on these charges and a trial is scheduled to commence June 28, 1993.

10. On February 23, 1993, the defendant filed an affidavit and complaint charging Fred Phelps, Sr. with one count of criminal defamation pursuant to K.S.A. 21-4004. The victim of the alleged false statements made on September 2, 1992, is Beth Mechler, a Topeka City Council member. The plaintiff Phelps has been arrested on this charge and a trial is scheduled to commence July 6, 1993.

11. On March 22, 1993, the defendant filed an affidavit and complaint charging Fred Phelps, Sr. with one count of criminal defamation pursuant to K.S.A. 21-4004. The victims of the alleged false statements made on March 11, 1993, are the daughter and husband of the deceased, Catherine "Katie" Frisbie. The plaintiff Phelps has been arrested on this charge and several motions are pending in the case.

12. On March 22, 1993, the defendant filed an affidavit and complaint charging Fred Phelps, Sr. with one count of criminal defamation pursuant to ...