dcruz at law.usc.edu
Tue Apr 17 09:53:13 PDT 2007
But cf. National Education Association Topeka, Inc. v. U.S.D. 501,
Shawnee County, Kansas, 227 Kan. 529, 532 (Kan. 1980) ("We also find the
court is without constitutional authority to render advisory opinions.
Such an opinion would go beyond the limits of determining an actual case
or controversy and would violate the doctrine of separation of powers.")
(so concluding with citation only to C.J.S. discussion of judicial
review and no analysis, in case where court had already found no
statutory authorization to hear an appeal of a moot case presenting no
case or controversy).
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Raftery, William
Sent: Tuesday, April 17, 2007 9:39 AM
To: Douglas Laycock; conlawprof at lists.ucla.edu
Subject: RE: Justiciability Question
The text of the legislation (now law) is here. It may help explain some
of this, or confuse the matter further.
"(i) Amendments by this act to this section shall be applicable on and
after whichever of the following dates is applicable:
(1) If the action authorized by section 3, and amendments thereto, is
decided in Kansas state court, amendments by this act to this section
shall be applicable from and after the date the Kansas supreme court
upholds the constitutionality thereof.
(2) If the action authorized by section 3, and amendments thereto, is
decided in federal court, amendments by this act to this section shall
be applicable from and after the date of the judgment of the court
upholding the constitutionality thereof.
New Sec. 3. In accordance with K.S.A. 75-702, and amendments thereto,
the attorney general shall seek judicial determination of the con-
stitutionality of K.S.A. 21-4015, as amended by section 1, and
amendments thereto. If the action authorized by this section is brought
in a district court of this state, then the judgment of that district
court shall be appealed directly to the Kansas supreme court as a matter
William E. Raftery
Court Research Analyst
National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
Tel: (757) 259-1811
Fax: (757) 564-2104
wraftery at ncsc.dni.us
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, April 17, 2007 12:35 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Justiciability Question
And if Phelps has any sense at all -- which is not a given -- it's not
in his interest to sue even if he could. He can ignore the law until it
is upheld, so why would he brng a case that might result in its being
Maybe a cemetery has standing to sue Phelps for a declaratory judgment
that the law is valid?
Quoting wasserma at fiu.edu:
> 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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Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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