Justiciability Question

wasserma at fiu.edu wasserma at fiu.edu
Tue Apr 17 08:37:21 PDT 2007


According to the story here: http://www.fac.org/news.aspx?id=18416

Kansas' governor signed into law regulations on picketing near funerals. But the law includes a provision that it will not take effect until the Kansas Supreme Court or a federal court declares the prohbition valid.  According to the story, that provision was added to prevent Fred Phelps and his Westboro Baptist Church from challenging the law successfully and collecting attorneys' fees.

But how can that judicial determination ever will come about?  Kansas cannot enforce the law against any protesters, since the law, by its terms, is not enforceable.  And it seems to me that any federal challenge to the law (by Phelps or anyone else) is not ripe, since there is no likelihood that the law could be enforced, and that no one has standing (under Los Angeles v. Lyons). I suppose if Kansas has more forgiving justiciability rules or allows its Supreme Court to render advisory opinions, a pre-enforcement challenge could come that way.

But it seems to me that the law depends on a judicial determination that cannot come about.

Am I missing something?


Howard Wasserman
FIU College of Law


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