big dog cowboy
03-12-2008, 05:58 AM
http://www.kansas.com/news/story/338816.html
Posted on Wed, Mar. 12, 2008
Court rejects funeral law
'Trigger' provision troubles justices
BY RON SYLVESTER AND JEANNINE KORANDA
The Wichita Eagle
The Kansas Supreme Court sent lawmakers scurrying to fix a law that restricts funeral picketing Tuesday after the court unanimously ruled it unconstitutional.
Rep. Raj Goyle, D-Wichita, said he expected a hearing next week to replace the 2007 Funeral Privacy Act. The law tried to curb the picketing of military funerals by Fred Phelps and his family's controversial Westboro Baptist Church of Topeka.
"It's so important for these families to grieve their family members in peace," said Sen. Jean Schodorf, R-Wichita.
A member of the Phelps family, meanwhile, said the legal wrangling made no difference, because similar laws passed in more than three dozen states haven't stopped the protests.
Higher courts have stalled those laws in several states, including federal rulings in Kentucky and Missouri that cited free-speech protections.
The Kansas Supreme Court, however, ruled that a provision inserted by lawmakers improperly shifted policymaking from the Statehouse to the courthouse.
The so-called "judicial trigger" provision would allow the law to take effect only after a state or federal court ruled it constitutional.
Lawmakers added the trigger out of fear the Phelpses would challenge it in court.
The high court's ruling said the law placed the court in the role of making policy, which is the Legislature's job.
The ruling did not affect another part of the law that allows family members to sue if they feel the protesters committed libel or slander against the deceased.
Lawmakers also required the Kansas Attorney General's Office to file the lawsuit challenging the funeral law, which then-Attorney General Paul Morrison did when he held office last year. In so doing, the Legislature took over the business of the executive branch, the court ruled.
The Supreme Court also said it couldn't rule on a law that had never been in effect.
"No one's privacy has been protected, no one's protest has been restricted, no one's liberty has been threatened, and no one's duty to enforce the provisions has been activated," Justice Marla Luckert wrote in the opinion.
Six of the justices said they can't void only one part of the law, because it's the Legislature's job to set policy.
Justice Lee Johnson disagreed, saying the court could strike the "trigger" provision and leave the rest of the law intact.
The justices said they issued their opinion Tuesday, instead of waiting until the next scheduled release date -- March 28 -- to give lawmakers more time to review the law.
Lawmakers responded quickly.
Goyle introduced a bill, minus the "trigger" provision, Tuesday afternoon in the House Federal and State Affairs Committee.
One change he proposed: allowing lawsuits for emotional distress as well as libel and slander. He based the idea on a Maryland law Albert Snyder used to sue Phelps' church. Snyder, whose son Lance Cpl. Matthew Snyder died in Iraq, won a $5 million judgment.
Committee Chair Rep. Arlen Siegfreid, R-Olathe, told the committee he planned to hear testimony, debate and vote on the measure in one day. No date has been set for the hearing, and the bill has not been assigned a number.
A new law could also face legal challenges.
The U.S. Court of Appeals prevented Missouri from enforcing its funeral protest law until the Phelps family could resolve a lawsuit over freedom of speech. A U.S. district judge in Kentucky struck down that state's law, saying a 300-foot buffer went too far in violating free-speech rights.
Goyle said Kansas' current law could survive a constitutional challenge. The law includes a 150-foot buffer zone for funeral protests one hour before and two hours after a funeral.
"We don't ever stand that close to those funerals, so it has zero impact on us," said Phelps' daughter, Shirley Phelps-Roper, who is a lawyer. "It's another way for these politicians to try and climb on our backs to promote themselves."
The Phelpses' protests anger people because they claim military deaths in Iraq are God's reaction to America's tolerance of homosexuality.
Patriot Guard rider Terry Houck of Mulvane, said his job at military funerals won't change.
Along with his wife, Carol, Houck helped form the guard, which parks its motorcycles between the Phelps family and funeral processions, serving as a flag-waving buffer.
"We don't even think about the protesters anymore," Houck said. "Because no one can see them. And we'll keep showing up as long as we're invited."
Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com (rsylvester@wichitaeagle.com).
Reach Jeannine Koranda at 785-296-3006 or jkoranda@wichitaeagle.com (jkoranda@wichitaeagle.com).
© 2007 Wichita Eagle and wire service sources. All Rights Reserved.
Posted on Wed, Mar. 12, 2008
Court rejects funeral law
'Trigger' provision troubles justices
BY RON SYLVESTER AND JEANNINE KORANDA
The Wichita Eagle
The Kansas Supreme Court sent lawmakers scurrying to fix a law that restricts funeral picketing Tuesday after the court unanimously ruled it unconstitutional.
Rep. Raj Goyle, D-Wichita, said he expected a hearing next week to replace the 2007 Funeral Privacy Act. The law tried to curb the picketing of military funerals by Fred Phelps and his family's controversial Westboro Baptist Church of Topeka.
"It's so important for these families to grieve their family members in peace," said Sen. Jean Schodorf, R-Wichita.
A member of the Phelps family, meanwhile, said the legal wrangling made no difference, because similar laws passed in more than three dozen states haven't stopped the protests.
Higher courts have stalled those laws in several states, including federal rulings in Kentucky and Missouri that cited free-speech protections.
The Kansas Supreme Court, however, ruled that a provision inserted by lawmakers improperly shifted policymaking from the Statehouse to the courthouse.
The so-called "judicial trigger" provision would allow the law to take effect only after a state or federal court ruled it constitutional.
Lawmakers added the trigger out of fear the Phelpses would challenge it in court.
The high court's ruling said the law placed the court in the role of making policy, which is the Legislature's job.
The ruling did not affect another part of the law that allows family members to sue if they feel the protesters committed libel or slander against the deceased.
Lawmakers also required the Kansas Attorney General's Office to file the lawsuit challenging the funeral law, which then-Attorney General Paul Morrison did when he held office last year. In so doing, the Legislature took over the business of the executive branch, the court ruled.
The Supreme Court also said it couldn't rule on a law that had never been in effect.
"No one's privacy has been protected, no one's protest has been restricted, no one's liberty has been threatened, and no one's duty to enforce the provisions has been activated," Justice Marla Luckert wrote in the opinion.
Six of the justices said they can't void only one part of the law, because it's the Legislature's job to set policy.
Justice Lee Johnson disagreed, saying the court could strike the "trigger" provision and leave the rest of the law intact.
The justices said they issued their opinion Tuesday, instead of waiting until the next scheduled release date -- March 28 -- to give lawmakers more time to review the law.
Lawmakers responded quickly.
Goyle introduced a bill, minus the "trigger" provision, Tuesday afternoon in the House Federal and State Affairs Committee.
One change he proposed: allowing lawsuits for emotional distress as well as libel and slander. He based the idea on a Maryland law Albert Snyder used to sue Phelps' church. Snyder, whose son Lance Cpl. Matthew Snyder died in Iraq, won a $5 million judgment.
Committee Chair Rep. Arlen Siegfreid, R-Olathe, told the committee he planned to hear testimony, debate and vote on the measure in one day. No date has been set for the hearing, and the bill has not been assigned a number.
A new law could also face legal challenges.
The U.S. Court of Appeals prevented Missouri from enforcing its funeral protest law until the Phelps family could resolve a lawsuit over freedom of speech. A U.S. district judge in Kentucky struck down that state's law, saying a 300-foot buffer went too far in violating free-speech rights.
Goyle said Kansas' current law could survive a constitutional challenge. The law includes a 150-foot buffer zone for funeral protests one hour before and two hours after a funeral.
"We don't ever stand that close to those funerals, so it has zero impact on us," said Phelps' daughter, Shirley Phelps-Roper, who is a lawyer. "It's another way for these politicians to try and climb on our backs to promote themselves."
The Phelpses' protests anger people because they claim military deaths in Iraq are God's reaction to America's tolerance of homosexuality.
Patriot Guard rider Terry Houck of Mulvane, said his job at military funerals won't change.
Along with his wife, Carol, Houck helped form the guard, which parks its motorcycles between the Phelps family and funeral processions, serving as a flag-waving buffer.
"We don't even think about the protesters anymore," Houck said. "Because no one can see them. And we'll keep showing up as long as we're invited."
Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com (rsylvester@wichitaeagle.com).
Reach Jeannine Koranda at 785-296-3006 or jkoranda@wichitaeagle.com (jkoranda@wichitaeagle.com).
© 2007 Wichita Eagle and wire service sources. All Rights Reserved.