Kansas justices refuse to rule on funeral picketing law

"The bottom line is, we're trying to get an answer to a question, and I'm not sure the question has really been asked."
Kansas Senate Majority Leader Derek Schmidt

Kansas City Sta/July 25, 2007
By David Klepper

Topeka -- The Kansas Supreme Court refused Wednesday to rule on the constitutionality of the state's new funeral picketing law, leaving its effectiveness in doubt.

The ruling was a setback for lawmakers who had hoped to use a positive ruling as legal cover to pre-empt legal challenges to the law. It also means the law may be unenforceable.

Lawmakers required Attorney General Paul Morrison to seek a ruling on the law before it could take effect. That legal maneuver — the so-called trigger — was designed to prevent lawsuits from Topeka's Westboro Baptist Church, which regularly protests at funerals.

But the court said that without a lawsuit challenging the restrictions, it would not weigh in.

In the opinion, released Wednesday, Chief Justice Kay McFarland wrote: "A ruling on the appropriateness of enforcement of S.B. 244's (the law's) substantive provisions is premature. … We have no case or controversy before us on that issue."

Lawmakers now face a legal Catch-22: the court won't issue a ruling on the restrictions unless there is a lawsuit; a lawsuit can't be filed until the law takes effect; and the law can't take effect unless there is a ruling.

Morrison will now try to persuade the court to strike down the trigger and let the law take effect. If he is successful, the restrictions could be enforced but would have no legal protection in the face of a lawsuit.

If he fails, lawmakers may find themselves crafting yet another funeral picketing bill in 2008.

The law would prohibit protests within 150 feet of a funeral for one hour before and two hours after a service. Violators could face fines and jail time. The measure was approved unanimously by the Legislature this year and signed by Gov. Kathleen Sebelius.

After failing to pass a similar bill last year, lawmakers inserted the trigger to ease concerns about constitutionality. Many lawmakers said they didn't want to hand Westboro a legal victory by enacting a law that would be open to legal challenge.

But rather than challenge the restrictions themselves, Morrison challenged the trigger. He argued that the requirement would diminish the separation of powers by making the court an advisory panel to the Legislature.

He also asked that the court let the rest of the law — including the restrictions — be enforced. That would have given the law legal validation.

It was a backdoor approach, and the court didn't buy it.

While the court dismissed the attempt to get a ruling on the restrictions, it will entertain Morrison's challenge to the trigger.

It gave Morrison 30 days to respond to three technical legal questions.

Senate Majority Leader Derek Schmidt, an Independence Republican and a chief architect of the bill, said the Legislature would do whatever was necessary to make the law workable.

He called Morrison's challenge "circuitous" and said he favored a more direct approach: Ask the court whether the restrictions are legal or not.

"The bottom line is, we're trying to get an answer to a question, and I'm not sure the question has really been asked," he said.

Morrison argues that the court would have quickly rejected such a challenge. Ashley Anstaett, Morrison's spokeswoman, said Morrison tried "the only possible avenue available to give Kansas a funeral picketing law that could be enforced."

Dozens of states have passed similar restrictions on funeral picketing. All were prompted by Westboro Baptist Church, which claims that military deaths are divine retribution for American tolerance of homosexuality.

Shirley Phelps-Roper, a lawyer and member of the church, said she wasn't surprised by the ruling. The "no case or controversy" rule is a basic tenet of the law, she said.

"I'm only surprised that they (the court) did what's right," she said. "This was a colossal waste of time and resources."