Kansas Funeral Picketing Law

wasserma at fiu.edu wasserma at fiu.edu
Sun Jul 29 09:55:41 PDT 2007

As many of you likely know, Kansas passed a law establishing a 150-foot buffer zone for all protests occurring one hour before and two hours after funerals; the law was designed to stop Fred Phelps and his followers from staging anti-gay protests at military funerals. The law also provided that its prohibitions would not become enforceable until a state or federal court had ruled on any First Amendment objections and declared them constitutionally valid. The law required the AG to seek that judicial declaration.

There was some discussion here a few months ago as to how such a declaration could be obtained. The AG decided to institute an original action in the Supreme Court of Kansas against the Governor, seeking Writs of Mandamus and Quo Warranto. The AG apparently has argued that the provisions requiring judicial pre-clearance violate separation of powers, by (legislatively) compelling the AG to institute an action seeking an improper advisory opinion and by requiring courts to issue that advisory opinion. As I understand it, the AG sought to have the Court strike down the "judicial review" provisions, which then would be severed from the substantive provisions, which would become enforceable. Interestingly, the AG has disavowed any suggestion that he now seeks a judicial declaration of the constitutionality of the substantive provisions, although the Governor raised the issue in her Response.

Well, it looks as if this strategy is not working. Last week, the Court issued an order denying Mandamus. A ruling on the substantive provisions was premature because the case, as brought, did not challenge those substantive provisions. And there was no need to order the Governor to enforce the law because there was no indication that she was refusing to do so.

As for Quo Warranto, the Court expressed doubt as to this being an appropriate remedy. The Court ordered a further response from the AG, specifically to clarify what the AG is challenging (the substantive provisions or just the judicial review provisions) and whether the Governor or the state legislature is the appropriate respondent in the action.

The AP story is at http://www.fac.org/news.aspx?id=18852 (via the First Amendment Center). The story also contains a link to the Court's seven-page order.

Howard Wasserman
Visiting Associate Professor of Law (2007-08)
Saint Louis University

Associate Professor of Law
FIU College of Law 

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