Phelps v. Hamilton, 95-3251

Page 1309

122 F.3d 1309

97 CJ C.A.R. 1595

Fred W. PHELPS, Sr.; Jonathan B. Phelps, Karl D Hockenbarger, Charles F. Hockenbarger; Timothy B Phelps, and Margie J. Phelps Plaintiffs-Appellants, v. Joan HAMILTON, in her official capacity as District Attorney, Defendant-Appellee.

No. 95-3251.

United States Court of Appeals Tenth Circuit.

Aug. 12, 1997.

Elizabeth M. Phelps, Phelps-Chartered, Topeka, KS, and Margie J. Phelps, for Plaintiffs-Appellants.

Deanne Watts Hay and Martha A. Peterson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, KS, for Defendant-Appellee.

Before BRORBY, HENRY, and MURPHY, Circuit Judges. ^*

HENRY, Circuit Judge.

This is one of a series of cases initiated by the plaintiffs-appellants seeking declaratory and injunctive relief under 42 U.S.C. § 1983 from eleven state criminal prosecutions arising from their anti-homosexual picketing and from state statutes which allegedly threaten their picketing activities. The plaintiffs allege that the criminal prosecutions and the three state statutes in question target and deter their constitutionally protected religious picketing. On summary judgment, the district court held that: (1) a state court determination that the criminal prosecutions were not brought in bad faith violation of the plaintiffs' constitutional rights was entitled to full faith and credit pursuant to 28 U.S.C. § 1738; (2) the Kansas Funeral Picketing Act was unconstitutionally vague; and (3) the plaintiffs did not have standing to challenge the Kansas anti-stalking law and Kansas telephone and fax harassment law. Thereafter, the district court lifted an agreed stay of the state criminal proceedings and, after the Kansas legislature amended the Kansas Funeral Picketing Act, denied the plaintiffs' request to modify or supplement its original order regarding the constitutionality of the Kansas Funeral Picketing Act. The plaintiffs now appeal. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm in part and reverse and remand in part.

BACKGROUND

Plaintiffs Charles F. Hockenbarger, Karl D. Hockenbarger, Jonathan B. Phelps, Fred W. Phelps, Sr., Margie J. Phelps, and Timothy B. Phelps are members of the Westboro Baptist Church in Topeka, Kansas, who are involved in anti-homosexual protests and picketing in Shawnee County, Kansas and other locations within and outside of Kansas. Since 1991, the plaintiffs and other members of the Westboro Baptist Church have engaged in a campaign against homosexuality through demonstrating, picketing, and distributing fliers at public and private events. The plaintiffs regularly picket outside public buildings and churches, in a park frequented by homosexuals, and at funerals of people who have died of AIDS. The messages conveyed by the plaintiffs' picketing signs and fliers include: "God Hates Fags"; "No Fags in Heaven"; "Fags are Worthy of Death, Rom. 1:32"; "Turn or Burn"; "Fag Church"; "God's Hate is Great"; "Hate is a Bible Value"; and "Topeka, Kansas, Sodom City." The plaintiffs' message and activities have been received with great controversy in the local community and have been the subject of much public discourse and media attention.

Against this background, defendant Joan Hamilton ran for the office of Shawnee County District Attorney in 1992. Ms. Hamilton focused much of her campaign platform on her opposition to "hate speech," particularly the plaintiffs' anti-homosexual activities. During the campaign, Ms. Hamilton made numerous public comments and utilized campaign literature in which she made clear her dislike for the plaintiffs' activities. On more than one occasion, Ms. Hamilton promised that, if elected, she would "get the plaintiffs off the streets."

Ms. Hamilton was elected as district attorney in November 1992, and sworn into office in January 1993. Between January and October 1993, Ms. Hamilton commenced nine prosecutions against the six plaintiffs for actions related to their picketing activities and confrontations with counter-demonstrators. In addition, Ms. Hamilton assumed responsibility for two additional prosecutions begun by her predecessor in office. The criminal charges in the eleven cases include: assault, battery, criminal damage to property, unlawful restraint, disorderly conduct, and aggravated intimidation of a victim. For purposes of our analysis in this case, the underlying state prosecutions can be grouped into two general categories: those that were filed before July 14, 1993 and those that were filed after July 14, 1993. ²

In March 1993, the first four of the plaintiffs charged in the state prosecutions filed prior to July 14, 1993--Charles Hockenbarger, Karl Hockenbarger, Jonathan Phelps, and Fred Phelps--filed motions in the state trial court requesting dismissal of the charges against them on the grounds of selective prosecution, prosecutorial vindictiveness or animus, government misconduct, and bad faith prosecution in violation of their constitutional rights. ³ In March and April 1993, a state trial judge conducted evidentiary hearings on the motion to dismiss in the first Jonathan B. Phelps case, 92-CR-274. Based upon that hearing, the judge denied the motion to disqualify the prosecutor and dismiss the case. This order was certified for interlocutory appeal, but the Kansas Court of Appeals declined to hear the appeal. Subsequently, in July 1993, another state trial judge, relying on the evidentiary hearing record developed in the Jonathan Phelps case, denied the three other plaintiffs' motions to disqualify the prosecutor and dismiss the case.

The plaintiffs then brought the present 42 U.S.C. § 1983 action seeking to have the eleven pending state criminal prosecutions declared unconstitutional and to enjoin any future prosecution under those laws or any other state law for any conduct which is protected speech. The plaintiffs also challenge the constitutionality of three Kansas laws under which they have not been charged and seek to prospectively enjoin any future prosecution under those laws. These laws are the Kansas Funeral Picketing Act, Kan. Stat. Ann. § 21-4015 (1995); the Kansas Anti-Stalking Statute, Kan. Stat. Ann. § 21-3438 (1995); and the telefacsimile amendment to the Kansas Telephone Harassment Statute, Kan. Stat. Ann. § 21-4113 (1995).

The district court addressed the plaintiffs' claims in a number of separate orders, five of which are relevant to the current appeal. First, on December 23, 1993, the district court ruled that while the plaintiffs had constitutional standing to bring a facial challenge to the Kansas Funeral Picketing Act, they did not have standing to challenge the Kansas Anti-Stalking Statute or the telefacsimile amendment to the Kansas Telephone Harassment Statute either as applied or facially. Second, on March 31, 1995, the district court granted Ms. Hamilton partial summary judgment, holding that the state trial court rulings that the state prosecutions were not brought in bad faith were entitled to full faith and credit pursuant to 28 U.S.C. § 1738. Third, on April 28, 1995, the district court granted the plaintiffs summary judgment on their facial challenge to the Kansas Funeral Picketing Act, finding the statute unduly vague in its use of the terms "before" and "after a funeral." Fourth, after the Kansas legislature amended this language in the Kansas Funeral Picketing Act to read "within one hour prior to, during and two hours following the commencement of a funeral," the district court, on July 27, 1995, denied the plaintiffs' motion for modification and supplementation of the April 28, 1995 order--a motion which sought rulings on other constitutional aspects of the Kansas Funeral Picketing Act. Finally, on July 27, 1995, the district court lifted an agreed stay of the state court criminal proceedings, allowing the underlying state prosecutions to go forward.

In this appeal, the plaintiffs argue: (1) that the district court erred in granting summary judgment for Ms. Hamilton on the bad faith prosecution claims based upon full faith and credit; (2) that the district court erred in declining to rule on the constitutionality of the amended Kansas Funeral Picketing Act; (3) that the court erred in lifting an agreed order staying the criminal cases; and (4) that the court erred in concluding that the plaintiffs lacked standing to challenge the anti-stalking and fax harassment laws. ⁴ We address plaintiffs' arguments in turn after first addressing the question of whether each of the six plaintiffs has constitutional standing to maintain his or her claims on appeal.

DISCUSSION

I. The Plaintiffs' Standing to Seek Prospective Relief on

the Bad Faith Claims

The six plaintiffs in this case seek equitable relief with regard to their bad faith prosecution claims. The plaintiffs requested a judgment declaring the underlying state prosecutions unconstitutional and enjoining those prosecutions and any future prosecutions which may be brought against them. Since the filing of the plaintiffs' last amended complaint in this § 1983 action, however, six of the eleven state prosecutions that are the subject of this suit have been dismissed in state court. The result of these dismissals is that two of the six plaintiffs, Karl Hockenbarger and Timothy Phelps, no longer have criminal charges pending against them--limiting their remedies to prospective relief. ⁵ Because the two plaintiffs can no longer demonstrate a present injury from which they seek redress, we must examine whether these plaintiffs have constitutional standing to maintain their claims in this case. See Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991) (stating that a plaintiff cannot maintain standing in a declaratory or injunctive relief action "unless he or she can demonstrate a good chance of being likewise injured in the future."). As we have previously held, "a plaintiff must maintain standing at all times throughout the litigation for a court to retain jurisdiction." Powder...