KS Supreme Court strikes down funeral picketing law
The Kansas Supreme Court today declared the state’s funeral picketing ban invalid, citing legislative legal maneuvering as the reason. The decision nullifies the law passed by the Legislature last year – and not yet implemented – designed to rein in a Topeka church that protests the funerals of fallen soldiers and others across the country.
The Kansas Supreme Court ruling in Kansas v. Sebelius, No. 98,961 (Kan., March 11, 2008) begins:
UCKERT, J.: During the 2007 Kansas legislative session, the legislature passed and the governor signed House Substitute for Senate Bill No. 244 (H. Sub. S.B. 244), which substantially amended K.S.A. 21-4015 (Furse 1995), formerly known as the Kansas Funeral Picketing Act, and now, as amended, known as the Kansas Funeral Privacy Act, K.S.A. 21-4015. L. 2007, ch. 111, secs. 1-6. Although the legislature repealed the Kansas Funeral Picketing Act, it did not make operative those substantive provisions of the Kansas Funeral Privacy Act regulating the time and place of protests at funerals. Rather, in a section the parties refer to as the judicial trigger provision, the legislature provided that the funeral protest provisions of the new legislation would not become operative unless and until this court or a federal court determined the funeral protest provisions were constitutional. K.S.A. 21-4015(i). In another provision, referred to as the judicial review provision, the legislature directed the attorney general to file a lawsuit challenging the constitutionality of the funeral protest provisions. K.S.A. 2007 Supp. 75-702a.
This lawsuit is not the action suggested in those provisions, however. In this action, the attorney general challenges the constitutionality of the judicial trigger provision, arguing the legislature violated the separation of powers doctrine by directing the attorney general to file the lawsuit contemplated in the provision. This argument is constructed on two premises. First, according to the attorney general, the legislature usurped or intruded into executive and judicial powers by ordering the attorney general to file a lawsuit he believes would seek an unconstitutional remedy and, as a result, would lack merit. Second, the attorney general’s conclusion regarding the merits of the suit is based upon an argument that the judicial trigger lawsuit would require a court to provide advice to the legislature as to whether the funeral protest provisions are constitutional and should become operative; he notes that courts do not have the judicial power to provide advisory opinions. If we agree with the attorney general on these points, he requests an order severing the judicial trigger provision from the Kansas Funeral Privacy Act.
These arguments are partially persuasive. The separation of powers doctrine prohibits the legislature from directing the attorney general to file a lawsuit that would seek an unconstitutional remedy, and the judgment sought by the judicial trigger provision would exceed the constitutionally defined power of a court, which is limited to deciding actual cases or controversies. The funeral protest provisions cannot present an actual case or controversy because the provisions are inoperative; therefore, 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.
Nevertheless, the judicial trigger provision cannot be severed from the Kansas Funeral Privacy Act because severance would broaden the effect of the Act in a manner contrary to the express directions of the legislature. The legislature directed that the funeral protest provisions would become operative if and when determined constitutional. That determination has not been made, and it would violate the separation of powers doctrine to make the provisions operative in a manner contrary to the explicit directions of the legislature.