Phelps v. Hamilton, 93-4148-SAC.
| Decision Date | 23 December 1993 |
| Docket Number | No. 93-4148-SAC.,93-4148-SAC. |
| Parties | Fred W. PHELPS, Sr., Jonathan B. Phelps, Karl D. Hockenbarger, Charles R. Hockenbarger, Timothy B. Phelps, and Margie J. Phelps, Plaintiffs, v. Joan HAMILTON, in her official capacity as District Attorney, Defendant. |
| Court | U.S. District Court — District of Kansas |
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Elizabeth M. Phelps, Phelps, Chartered, Margie J. Phelps, Topeka, KS, for plaintiffs.
Deanne W. Hay, Myron L. Listrom, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Carol R. Bonebrake, Office of Atty. Gen., Topeka, KS, for defendant.
The plaintiffs bring this latest action asking the court for declaratory and injunctive relief from criminal prosecutions arising from their anti-homosexual picketing and from certain criminal statutes which allegedly threaten their anti-homosexual picketing. The plaintiffs regularly picket outside churches and public buildings, in parks, and at funerals. They picket in opposition to homosexuality and to society's tolerance and commendation of homosexuality. The messages on their picket signs are often seen as controversial and disturbing. Examples of such messages are: "God Hates Fags," "Fags Burn in Hell," "Fags Hate God," and "Fags are Worthy of Death." The plaintiffs also carry signs with messages that may have a meaning beyond their ardent opposition to homosexuality and, thus, are not as appalling to the public. These signs include: "Fear God," "Turn or Burn," "Go and Warn Them," and "Hate is a Bible Value."
Each of the plaintiffs is criminally charged in state court for conduct taken during or shortly after one or more anti-homosexual picketing events. The plaintiffs seek to have these state prosecutions declared unconstitutional and all future prosecutions by the defendant enjoined. The plaintiffs also challenge the constitutionality of the Kansas Funeral Picketing Act, K.S.A.1992 Supp. 21-4015. The plaintiff Fred Phelps, Sr. additionally challenges the constitutionality of the Kansas Anti-Stalking Statute, 1993 Kan. Sess.Laws Ch. 291, § 253, and the Kansas Telephone Harassment Statute, K.S.A. 21-4113, as amended to include telefacsimile communications, 1992 Kan.Sess.Laws Ch. 298, § 79.
Upon filing their action, the plaintiffs also moved for a preliminary injunction (Dk. 2). By order filed August 25, 1993, the court continued the hearing on the preliminary injunction request until the following three issues were submitted and decided on summary judgment motions:
(Dk. 14 at 3-4). Both sides filed their motions and responses within the dates set by the court. The parties were allowed to supplement their motions after the plaintiffs filed their second amended complaint adding two parties and allegations. The summary judgment motions are now ripe, the court is ready to rule. The parties agree the court's ruling will be controlling over all the parties and claims found in the second amended complaint.
The court shall grant a motion for summary judgment when a genuine issue of material fact does not exist and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc. 939 F.2d 887, 891 (10th Cir.1991). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted).
The defendant properly takes issue with the plaintiffs' failure to comply with D.Kan. Rule 206. In several instances, the plaintiffs' statement of facts is not concise, is not broken down into separately numbered paragraphs, and is not supported by specific references to portions of the record. Besides these deficiencies, the plaintiffs interspersed their statement with footnotes. These deficiencies and the footnotes increase the opposing party's burden in controverting the facts and unduly complicate the court's task in discerning what facts are uncontroverted. Finally, the court strongly discourages any effort to circumvent page limitations through unnecessary footnotes or a reduced type size. Briefs using such a "favorite undergraduate gambit" may be struck in the court's discretion. See, e.g., TK-7 Corp. v. Estate of Barbouti, 966 F.2d 578, 579 (10th Cir.1992). The court admonishes the plaintiffs that in the future it will not tolerate a brief that fails to comply with basic requirements or employs undergraduate gambits.
Without asking leave of the court, the plaintiffs purport to incorporate the entire evidentiary and factual record from the case, Phelps, et al. v. Hamilton, 828 F.Supp. 831 (D.Kan.1993), by reference in their brief here. This practice of preemptory incorporation is unacceptable. When it comes to summary judgment motions, the facts shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admissions. All of these matters are to be attached to the party's memorandum. See D.Kan.Rule 206(c). Relief from this requirement comes from the court. The court construes the plaintiffs' statement of incorporation as a request to take judicial notice of the record in 828 F.Supp. 831. The court grants the request because the facts and issues in both cases are closely related, because the defendant had an ample opportunity to controvert the material facts in that case, and because the parties and the court would save time and expense through this incorporation.
The plaintiffs argue the court should give collateral estoppel effect to certain of its legal conclusions and factual findings made in the order filed July 2, 1993, in 828 F.Supp. 831. According to the plaintiffs, the court in that order found that there was evidence that the defendant was acting in bad faith in prosecuting the plaintiff Fred Phelps and that the plaintiff Ed Engel had standing to challenge the criminal defamation statute. Affirmative collateral estoppel is not available to the plaintiffs for the court did not make any final finding on issues directly applicable to the present proceeding. As to the issue of bad faith, the court concluded that the defendant was not entitled to summary judgment on abstention for the plaintiff Phelps had come forth with sufficient evidence to raise a genuine issue of material fact regarding the defendant's motive in prosecuting the pending state criminal defamation cases. As for Engel's standing, the court again denied the defendant summary judgment on this issue as the plaintiff Engel had come forth with sufficient evidence for a court to find in his favor. Neither ruling was the result of a full litigation of the facts. The denial of summary judgment "is strictly a pretrial order that decides only one thing — that the case should go to trial." Switzerland Cheese Ass'n, Inc. v. E. Horne's Mkt., Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966). Neither ruling is of the type or nature that can be used affirmatively to preclude litigation over the issues in this case. The plaintiffs' collateral estoppel argument is without merit.
Finally, the defendant correctly points out that several of the plaintiffs' statements are not supported by exhibits meeting the requirements of Rule 56(c) and (e). In most instances, the exhibits, such as photographs, summaries and unofficial transcripts, are not properly authenticated by a Rule 56(e) affidavit. Additionally, many of the exhibits, like the newspaper articles, lack a foundation and are inadmissible hearsay. The court sustains the defendant's objections and will not consider those exhibits failing Rule 56 standards.
For purposes of these motions, the court accepts the following facts as uncontroverted:
1. The plaintiff Fred W. Phelps, Sr., a resident of Kansas, is an Old School Baptist preacher serving the Westboro Baptist Church in Topeka, Kansas.
2. The plaintiffs, Jonathan B. Phelps, Timothy B. Phelps and Margie J. Phelps, are residents of Kansas and members of the Westboro Baptist Church. They are also children of the plaintiff Fred W. Phelps, Sr.
3. The...
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