Case Information
*1 Before BRORBY, HENRY, and MURPHY, Circuit Judges. [*]
HENRY, Circuit Judge.
This is one of a series of cases initiated by the plaintiffs-appellants seeking declaratory and injunctive relief under 42 U.S.C. § 1983 from eleven state criminal prosecutions arising from their anti-homosexual picketing and from state statutes which allegedly threaten their picketing activities. The plaintiffs allege that the criminal prosecutions and the three state statutes in question target and deter their constitutionally protected religious picketing. On summary judgment, the district court held that: (1) a state court determination that the criminal prosecutions were not brought in bad faith violation of the plaintiffs’ constitutional rights was entitled to full faith and credit pursuant to 28 U.S.C. § 1738; (2) the Kansas Funeral Picketing Act was unconstitutionally vague; and (3) the plaintiffs did not have standing to challenge the Kansas anti-stalking law and Kansas telephone and fax harassment law. Thereafter, the district court lifted an agreed stay of the state criminal proceedings and, after the Kansas legislature amended the Kansas Funeral Picketing Act, denied the plaintiffs’ request to modify or supplement its original order regarding the constitutionality of the Kansas Funeral Picketing Act. The plaintiffs now appeal. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm in part and reverse and remand in part.
BACKGROUND
Plaintiffs Charles F. Hockenbarger, Karl D. Hockenbarger, Jonathan B. Phelps, Fred W. Phelps, Sr., Margie J. Phelps, and Timothy B. Phelps are members of the Westboro Baptist Church in Topeka, Kansas, who are involved in anti-homosexual protests and picketing in Shawnee County, Kansas and other locations within and outside of Kansas. Since 1991, the plaintiffs and other members of the Westboro Baptist Church have engaged in a campaign against homosexuality through demonstrating, picketing, and distributing fliers at public and private events. The plaintiffs regularly picket outside public buildings and churches, in a park frequented by homosexuals, and at funerals of people who have died of AIDS. The messages conveyed by the plaintiffs’ picketing signs and fliers include: “God Hates Fags”; “No Fags in Heaven”; “Fags are Worthy of Death, Rom. 1:32”; “Turn or Burn”; “Fag Church”; “God’s Hate is Great”; “Hate is a Bible Value”; and “Topeka, Kansas, Sodom City.” The plaintiffs’ message and activities have been received with great controversy in the local community and have been the subject of much public discourse and media attention.
Against this background, defendant Joan Hamilton ran for the office of Shawnee County District Attorney in 1992. Ms. Hamilton focused much of her campaign platform on her opposition to “hate speech,” particularly the plaintiffs’ anti-homosexual activities. During the campaign, Ms. Hamilton made numerous public comments and utilized campaign literature in which she made clear her dislike for the plaintiffs’ activities. On *4 more than one occasion, Ms. Hamilton promised that, if elected, she would “get the plaintiffs off the streets.”
Ms. Hamilton was elected as district attorney in November 1992, and sworn into office in January 1993. Between January and October 1993, Ms. Hamilton commenced nine prosecutions against the six plaintiffs for actions related to their picketing activities and confrontations with counter-demonstrators. In addition, Ms. Hamilton assumed responsibility for two additional prosecutions begun by her predecessor in office. The criminal charges in the eleven cases include: assault, battery, criminal damage to property, unlawful restraint, disorderly conduct, and aggravated intimidation of a victim. For purposes of our analysis in this case, the underlying state prosecutions can be grouped into two general categories: those that were filed before July 14, 1993 and those that were filed after July 14, 1993. [2]
*5 In March 1993, the first four of the plaintiffs charged in the state prosecutions filed prior to July 14, 1993--Charles Hockenbarger, Karl Hockenbarger, Jonathan Phelps, and Fred Phelps--filed motions in the state trial court requesting dismissal of the charges against them on the grounds of selective prosecution, prosecutorial vindictiveness or animus, government misconduct, and bad faith prosecution in violation of their constitutional rights. [3] In March and April 1993, a state trial judge conducted evidentiary hearings on the motion to dismiss in the first Jonathan B. Phelps case, 92-CR-274. Based upon that hearing, the judge denied the motion to disqualify the prosecutor and dismiss the case. This order was certified for interlocutory appeal, but the Kansas Court of Appeals declined to hear the appeal. Subsequently, in July 1993, another state trial judge, relying on the evidentiary hearing record developed in the Jonathan Phelps case, denied the three other plaintiffs’ motions to disqualify the prosecutor and dismiss the case.
The plaintiffs then brought the present 42 U.S.C. § 1983 action seeking to have the eleven pending state criminal prosecutions declared unconstitutional and to enjoin any future prosecution under those laws or any other state law for any conduct which is Case 93-CR-2831: False reporting of a crime (filed Oct. 7, 1993) Timothy B. Phelps
Case 93-CR-2836: Battery/unlawful restraint (filed Oct. 7, 1993) [3] Jonathan Phelps filed a motion to dismiss in Case No. 93-CR-274 on March 10, 1993. Karl Hockenbarger filed a motion to dismiss in Case Nos. 92-CR-3173 on March 12, 1993. Charles Hockenbarger filed motions to dismiss in Case Nos. 92-CR-3172 and 93-CR-276 on March 12 and 16, 1993, respectively. Finally, Fred Phelps filed a motion to dismiss in Case No. 93-CR-326 on March 31, 1993.
protected speech. The plaintiffs also challenge the constitutionality of three Kansas laws under which they have not been charged and seek to prospectively enjoin any future prosecution under those laws. These laws are the Kansas Funeral Picketing Act, Kan. Stat. Ann. § 21-4015 (1995); the Kansas Anti-Stalking Statute, Kan. Stat. Ann. § 21-3438 (1995); and the telefacsimile amendment to the Kansas Telephone Harassment Statute, Kan. Stat. Ann. § 21-4113 (1995).
The district court addressed the plaintiffs’ claims in a number of separate orders, five of which are relevant to the current appeal. First, on December 23, 1993, the district court ruled that while the plaintiffs had constitutional standing to bring a facial challenge to the Kansas Funeral Picketing Act, they did not have standing to challenge the Kansas Anti-Stalking Statute or the telefacsimile amendment to the Kansas Telephone Harassment Statute either as applied or facially. Second, on March 31, 1995, the district court granted Ms. Hamilton partial summary judgment, holding that the state trial court rulings that the state prosecutions were not brought in bad faith were entitled to full faith and credit pursuant to 28 U.S.C. § 1738. Third, on April 28, 1995, the district court granted the plaintiffs summary judgment on their facial challenge to the Kansas Funeral Picketing Act, finding the statute unduly vague in its use of the terms “before” and “after a funeral.” Fourth, after the Kansas legislature amended this language in the Kansas Funeral Picketing Act to read “within one hour prior to, during and two hours following the commencement of a funeral,” the district court, on July 27, 1995, denied the *7 plaintiffs’ motion for modification and supplementation of the April 28, 1995 order--a motion which sought rulings on other constitutional aspects of the Kansas Funeral Picketing Act. Finally, on July 27, 1995, the district court lifted an agreed stay of the state court criminal proceedings, allowing the underlying state prosecutions to go forward.
In this appeal, the plaintiffs argue: (1) that the district court erred in granting summary judgment for Ms. Hamilton on the bad faith prosecution claims based upon full faith and credit; (2) that the district court erred in declining to rule on the constitutionality of the amended Kansas Funeral Picketing Act; (3) that the court erred in lifting an agreed order staying the criminal cases; and (4) that the court erred in concluding that the plaintiffs lacked standing to challenge the anti-stalking and fax harassment laws. [4] We address plaintiffs’ arguments in turn after first addressing the question of whether each of the six plaintiffs has constitutional standing to maintain his or her claims on appeal.
DISCUSSION
*8
I. The Plaintiffs’ Standing to Seek Prospective Relief on the Bad Faith Claims
The six plaintiffs in this case seek equitable relief with regard to their bad faith
prosecution claims. The plaintiffs requested a judgment declaring the underlying state
prosecutions unconstitutional and enjoining those prosecutions and any future
prosecutions which may be brought against them. Since the filing of the plaintiffs’ last
amended complaint in this § 1983 action, however, six of the eleven state prosecutions
that are the subject of this suit have been dismissed in state court. The result of these
dismissals is that two of the six plaintiffs, Karl Hockenbarger and Timothy Phelps, no
longer have criminal charges pending against them--limiting their remedies to prospective
relief.
[5]
Because the two plaintiffs can no longer demonstrate a present injury from which
they seek redress, we must examine whether these plaintiffs have constitutional standing
to maintain their claims in this case. See Facio v. Jones,
Article III of the Constitution limits the federal courts to adjudicating actual cases
and controversies. See Allen v. Wright,
In Lyons, the Supreme Court made clear that plaintiffs may lack standing to seek
prospective relief when the challenged conduct is no longer continuing. The plaintiff in
Lyons sued the City of Los Angeles and several police officers, alleging that the officers
had stopped him for a routine traffic violation and applied a “choke-hold” without
provocation.
Under the standing doctrine as developed in Lyons and O’Shea, we conclude that those plaintiffs in this case who do not have on-going state prosecutions and, therefore seek relief based solely on past prosecutions, do not meet Article III’s “case or controversy” requirement sufficient to maintain standing to appeal the district court’s ruling on their bad faith prosecution claims. These plaintiffs do not allege in the complaint or elsewhere that they have ever been subjected to prosecution prior to those *11 prosecutions on which the present action is based or that they likely will be in the future. Like the plaintiff in Lyons, neither Karl Hockenbarger nor Timothy Phelps can establish a real and immediate threat that they again will be subject to prosecution for their picketing or protesting activities under valid state criminal laws.
Furthermore, in suing Ms. Hamilton in her official capacity as district attorney,
these plaintiffs seek not only to enjoin Ms. Hamilton but also anyone in the Office of the
District Attorney for the Third Judicial District of Kansas from hereafter prosecuting
them for their allegedly protected activities. See Brandon v. Holt,
We are also reluctant to allow Karl Hockenbarger and Timothy Phelps to proceed
with their bad faith prosecution claims for prospective declaratory and injunctive relief
due to federalism and comity concerns. As the Supreme Court stated in O’Shea, the
“recognition of the need for a proper balance in the concurrent operation of federal and
state courts counsels restraint against the issuance of injunctions against state officers
engaged in the administration of the State’s criminal laws . . . .”
Based on the foregoing analysis, we conclude that we do not have jurisdiction to hear those plaintiffs’ appeals whose underlying state prosecutions have been dismissed because this court does not have jurisdiction to issue prospective relief in this instance. Accordingly, we dismiss Karl Hockenbarger and Timothy Phelps as appellants with regard to their appeals of the district court’s ruling on their bad faith prosecution claims. Because the remaining four plaintiffs--Charles Hockenbarger, Jonathan Phelps, Fred Phelps, and Margie Phelps--do have pending state prosecutions, and therefore can demonstrate a present “case or controversy,” we proceed to analyze their appeal of the district court’s full faith and credit ruling.
II. Full Faith and Credit and Collateral Estoppel
In response to the plaintiffs’§ 1983 suit, Ms. Hamilton moved for summary judgment on the basis that the district court should give full faith and credit to the state court findings on the plaintiffs’ bad faith claims. The district court, in its March 31, 1995 order, held that, under the Full Faith and Credit Act, 28 U.S.C. § 1738, it must give the state court rulings on the issue of bad faith prosecution the same preclusive effect that the rulings would be given in the Kansas state courts. Aplts’ Br. att. C (Dist. Ct. Order dated Mar. 31, 1995) [hereinafter “Dist. Ct. Order dated Mar. 31, 1995”]. The district court concluded that the legal issues in this case were conclusively settled by the Kansas courts and that it was collaterally estopped from reconsidering those rulings. Id . at 11.
On appeal, the plaintiffs argue that the district court erred in applying the Kansas collateral estoppel doctrine on four main points. First, the plaintiffs argue that the court erred in finding that all the plaintiffs were in privity with one another such that the evidentiary hearings and findings in the Jonathan Phelps case could be applied against the other plaintiffs. Second, they argue that Ms. Hamilton’s bad faith violations continued past the date of the last state court hearing, and, thus, are distinct from the issue considered in the state court proceedings. Third, the plaintiffs argue that full faith and credit should not apply in this case because of a prior district court ruling that the prosecutions were brought in bad faith. Finally, they argue that the state court *14 proceedings were so infected with bias, “that it is impossible to conclude that the constitutional rights of these plaintiffs were protected therein . . . .” Aplts’ Br. at 38.
We review a grant of summary judgment de novo, applying the same legal
standard as the district court under Fed. R. Civ. P. 56(c). See Applied Genetics Int’l, Inc.
v. First Affiliated Sec., Inc.,
The Full Faith and Credit Act, 28 U.S.C. § 1738, codifies the Full Faith and Credit
Clause of the Constitution, Art. IV, § 1. The statute provides, in pertinent part, that the
“records and judicial proceedings of any court of any such State . . . shall have the same
full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts of such State, Territory or
Possession from which they are taken.” 28 U.S.C. § 1738 (1994). In Allen v. McCurry,
Collateral estoppel, or issue preclusion, means that once “‘an issue of ultimate fact
has [] been determined by a valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.’” State v. Fisher,
A. Was There a Final Judgment on the Merits?
Our first inquiry is to determine whether there was “a prior judgment on the merits
which determined the rights and liabilities of the parties on the issue, based upon ultimate
facts as disclosed by the pleadings and judgment.” Id. at 128. The principal question
*16
here is whether the state trial court’s resolution of the plaintiffs’ motions to dismiss was
sufficiently final to render those state decisions final for collateral estoppel purposes. It is
well established law in Kansas that “where a court has jurisdiction of the parties to an
action and of the subject matter thereof, and renders a judgment within its competency,
such judgment is final and conclusive, unless corrected or modified on appeal.”
McFadden v. McFadden,
Furthermore, the Kansas courts have adopted the now-majority view regarding the
pendency of appeals which provides that the fact that an appeal is pending in a case does
not generally vitiate the res judicata effect of a judgment. See Willard v. Ostrander, 32 P.
1092, 1093-94 (Kan. 1893); Munn v. Gordon,
In the present case, the Shawnee County District Court fully considered the plaintiffs’ bad faith claims which were raised in four of the plaintiffs’ motions to dismiss and disqualify Ms. Hamilton and all her assistants as prosecutors. The state district court first addressed this issue in the Jonathan Phelps case. After conducting two evidentiary hearings in which 42 witnesses testified and over 70 exhibits were admitted, the trial judge denied the motion in a written order, finding that “[t]here is no credible evidence of prejudice on the part of Hamilton against this defendant, and there is no credible evidence *17 that defendant is being treated unfairly.” Aple’s App., vol. V, at 836 (Order denying defendant’s motion to disqualify, dated April 9, 1993). This decision was then certified by the judge as a “final decision” for interlocutory appeal. See id. at 837 (Certification for interlocutory appeal, dated Apr. 9, 1993). In later proceedings on the identical motions of Charles Hockenbarger, Karl Hockenbarger, and Fred Phelps, a second trial judge considered the full record of the Jonathan Phelps proceeding and similarly denied the motions to dismiss and disqualify Ms. Hamilton. See id. at 865-866 (Supplemental Order dated July 15, 1993). Because the plaintiffs’ bad faith claims were fully addressed by two state trial judges who denied each of these four plaintiffs’ motions to dismiss and disqualify Ms. Hamilton, this issue is “final” under Kansas law until such time that it is modified on direct appeal.
B. Are the Plaintiffs in Privity?
The second requirement of the Kansas collateral estoppel doctrine is that “the
parties [are] the same or in privity.” Jackson Trak Group ,
A person who is not a party but who controls an action, individually or in co-operation with others, is bound by the adjudication of litigated matters as if he were a party if he has a proprietary or financial interest in the judgment or in the determination of a question of fact or of a question of law with reference to the same subject matter or transaction; if the other party has notice of his participation, the other party is equally bound.
Id. at 298 (quoting Restatement of Judgments § 84).
According to the Restatement, “control,” for purposes of issue preclusion, refers to the ability to exercise “effective choice as to the legal theories and proofs to be advanced,” as well as “control over the opportunity to obtain review.” Restatement (Second) of Judgments § 39 cmt. c (1982). However, the “control” need not be exercised directly by the non-litigating party. “It is sufficient that the choices were in the hands of counsel responsible to the controlling person; moreover, the requisite opportunity may exist even when it is shared with other persons.” Id.
Due to the dismissal of two of the original six plaintiffs from this appeal, the question confronting us is whether appellant Margie Phelps--who was not a party to the motions to dismiss--may be held to be in privity with the remaining plaintiffs--Jonathan Phelps, Charles Hockenbarger, and Fred Phelps--such that she may be bound by the state courts’ rulings on those three plaintiffs’ motions to dismiss Ms. Hamilton. We hold that Margie Phelps is in privity with the other plaintiffs for two independent reasons. First, our examination of the record in this case leads us to conclude that throughout the state *19 and federal court proceedings in this matter, the plaintiffs have continually asserted that they have been singled out by Ms. Hamilton as one entity because of their common membership in the Westboro Baptist Church and their picketing activities. Second, in applying the definition of “control” for purposes of finding privity, it is clear that Margie Phelps, as listed attorney for each of the plaintiffs, not only had input into the legal theories and arguments advanced, but could be said to be directly responsible, along with co-counsel, for “controlling” the entire course of the state court proceedings. On this basis, we hold that privity exists between the parties in this action such that Margie Phelps may be bound by the state court determinations on the other three plaintiffs’ motions to dismiss.
C. Was this Issue Decided by the State Courts?
The final determination under the collateral estoppel doctrine is whether the issue
was actually “determined and necessary to support the judgment.” Jackson Trak Group ,
The true rule, now well established, is that where a second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the finding was made or the judgment rendered, and does not extend to matters which might have been but were not litigated and determined in the former action.
Stroup v. Pepper,
In the first five state court prosecutions, Jonathan Phelps, Charles Hockenbarger, Karl Hockenbarger, and Fred Phelps each moved to dismiss the charges against them--all of which were filed prior to July 14, 1993--on the grounds of bad faith prosecution, government misconduct, and selective prosecution motivated by Ms. Hamilton’s disagreement with their constitutionally protected religious and speech activities. See, e.g., Aple’s Supp. App. vol. II, at 86 (Mem. in supp. of mot. to dismiss in State v. Jonathan Phelps, Case No. 93-CR-274, dated Mar. 10, 1993). After extensive hearings on the Jonathan Phelps motion to dismiss, the state trial court denied the motion, finding “no legitimate reason to disqualify Hamilton and/or her staff as counsel in this case.” Aple’s Suppl. App. vol. V., at 766 (Order denying defendant’s motion to disqualify in State v. *21 Jonathan Phelps, Case No. 93-CR-274, dated Mar. 31, 1993). A second state trial court then ruled upon the remaining three plaintiffs’ identical motions to dismiss, finding, based upon the record in the Jonathan Phelps case, that there was no need to relitigate this issue and insufficient evidence to decide to the contrary. Id. at 858, 862 (Transcript of Hearing in State v. Charles Hockenbarger, Case No. 92-CR-3172, dated July 14, 1993).
These state court decisions involved the same issue presently before this court with regard to the plaintiffs’ claims originating from those same state court prosecutions. In their § 1983 claim, each of the plaintiffs seeks declaratory and injunctive relief from their state criminal prosecutions, claiming that “the pending prosecutions by defendant of all plaintiffs [are] unconstitutional because of bad faith, because the prosecutions are based upon the content of plaintiffs’ message, and because the prosecutions are primarily motivated by a desire to punish and silence protected speech.” Aplts’ App. vol. II, at 719 (Plaintiffs’ Second Amended Complaint dated Nov. 15, 1993). Because the state and federal bad faith claims are identical in substance, we hold that the bad faith issue, insofar as it related to the pre-July 14, 1993 claims presently before us, was previously “considered and decided” by the Kansas state courts and the plaintiffs are collaterally estopped from relitigating that issue as it relates to the first five state prosecutions.
The remaining question is whether the plaintiffs’ arguments that Ms. Hamilton’s bad faith continued past the date of the final state court ruling on the motions to dismiss-- e.g., through the filing of six additional criminal charges--should have any effect on *22 whether the underlying state court proceedings determined the issue now brought in federal court. In assessing this question under the first prong of the Kansas collateral estoppel test, the district court held that whether or not “additional evidence was discovered subsequent to the state court decisions . . . is not persuasive and is not fatal to a finding of finality.” Dist. Ct. Order dated Mar. 31, 1995 at 9. On appeal, the plaintiffs argue that because a substantial portion of their evidence in this case relates to six additional state cases which were filed after July 14, 1993, and were therefore not considered in the state court rulings, the district court erred in applying full faith and credit to all the criminal cases at issue in this case.
As stated above, Kansas law recognizes that collateral estoppel may only be
invoked as to “questions and issues shown to have been actually decided in the prior
action.” Frey ,
In proving Ms. Hamilton’s bad faith with regard to the later-filed prosecutions, the
plaintiffs offer a voluminous record of evidence--principally related to the “Reverend
Weeks incident,” which occurred on September 5, 1993-- that was not before the state
courts when the earlier rulings were made. Where there is neither a state court ruling on
the plaintiffs’ bad faith claim relating to these later-occurring events
[6]
nor, in the
alternative, a determination by the district court that this additional evidence is not
materially different from that presented and ruled upon by the state courts in the earlier
prosecutions, we cannot say that this “issue was actually determined and was necessary to
support the judgment” of the state courts. See Lawlor v. National Screen Serv. Corp., 349
U.S. 322, 328 (1955) (holding that while a judgment may preclude recovery on claims
arising prior to its entry, “it cannot be given the effect of extinguishing claims which did
not even then exist and which could not possibly have been sued upon in the previous
case”); Commissioner of Internal Revenue v. Sunnen,
On the basis of the foregoing analysis, we hold that the district court erred in ruling that the plaintiffs’ present bad faith claim was entirely precluded under the Full Faith and Credit Act because of the state court rulings in five of the eleven state prosecutions at issue in this case. [7] We remand this issue to the district court for the following considerations. First, the district court should determine whether the state courts have *25 ruled on the bad faith claims in the post-July 14, 1993 cases, and if so, whether the disposition of these claims in state court collaterally estops plaintiffs’ claims in federal court. Second, if the state courts have not made findings in the post-July 14 cases, the district court should determine whether the additional evidence surrounding these later- filed claims is materially different from the evidence presented and ruled upon in the earlier state court cases. If the evidence is not materially different, the district court should determine whether collateral estoppel should apply based upon the state court rulings in the pre-July 14 cases. Finally, if the above conditions are not met, the district court should resolve plaintiffs’ bad faith claims arising from the post-July 14 cases on the merits.
D. Did the Plaintiffs Have a “Full and Fair Opportunity”
to Litigate Their Claim?
The plaintiffs raise two additional challenges to the district court’s grant of full
faith and credit to the state court rulings. First, the plaintiffs argue that full faith and
credit should not apply in this case because of a prior district court ruling that the
prosecutions were brought in bad faith. Second, they argue that the state court
proceedings were so infected with bias “that it is impossible to conclude that the
constitutional rights of these plaintiffs were protected therein.” Aplts’ Br. at 38. We
analyze both of these arguments under the “full and fair opportunity” exception to full
faith and credit, as recognized in Allen v. McCurry,
As stated above, the Supreme Court has recognized that collateral estoppel should
not apply “when the party against whom the earlier decision is asserted did not have a
‘full and fair opportunity’ to litigate that issue in the earlier case.” Id. “Redetermination
of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of
procedures followed in prior litigation.” Montana v. United States,
The plaintiffs first argue that full faith and credit should not apply because the
district court found evidence that the prosecutions were in bad faith and this is “[t]he law
of this case.” Aplts’ Br. at 37. The law of the case doctrine provides that “‘when a court
decides upon a rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case.’” Mason v. Texaco, Inc. ,
In that case, the district court addressed, among other things, whether the bad faith exception to the Younger abstention doctrine should apply with regard to enjoining the underlying state court prosecutions. Id. at 1459. The court ruled that it would not grant summary judgment because the “record reveals several genuine issues of material fact in deciding whether the bad faith exception [to Younger] applies here.” Id. In so ruling, however, the district court specifically stated that “the court does not find that the defendant has acted in bad faith in bringing or prosecuting all or any of the pending criminal cases against the plaintiffs.” Id. Because the plaintiffs are incorrect that the district court has ruled on the bad faith issue, and because our search of the record reveals no other district court order on point, we reject the plaintiffs’ “law of the case” argument.
The plaintiffs’ final contention is that this court should not apply full faith and
credit to the state court rulings because the state judges were inherently biased. The
plaintiffs cite the content and language of the adverse rulings against them as well as the
state district court judge’s comments during a hearing regarding the shocking nature of
their “religious activities.” To state a due process claim that a judge is biased, the
claimant must show either that actual bias existed, or that an appearance of bias created a
conclusive presumption of actual bias. See Fero v. Kerby,
After reviewing the court orders and hearing transcript cited by the plaintiffs, we
are unable to conclude that there was actual bias or an appearance of bias on the part of
*28
the state court judge in his remarks regarding the plaintiffs’ activities, which they
themselves admit are controversial. Furthermore, as well-stated by the district court:
“[T]he fact that plaintiffs/state court defendants were not successful, alone, is not
evidence of bias on the part of the state courts.” Dist. Ct. Order dated Mar. 31, 1995 at
10. Accordingly, we hold that there is no “reason to doubt the quality, extensiveness, or
fairness of procedures” followed in the state court proceedings. Montana,
III. Plaintiffs’ Motion to Modify or Supplement the April 28, 1995 Order The plaintiffs argue that the district court erred in declining to modify or supplement its April 28, 1995 order and rule on the plaintiffs’ additional constitutional challenges to the Kansas Funeral Picketing Act after the legislature amended the statute. In its April 28, 1995 order, the district court granted the plaintiffs summary judgment, finding that the Kansas Funeral Picketing Act was facially unconstitutional because the terms “before” and “after a funeral,” as used in the statute, were unduly vague. Following the order, on April 29, 1995, the Kansas legislature amended the statute to read “one hour before” and “two hours after” a funeral. The plaintiffs thereafter filed a motion to modify or supplement the April 28 order, asking the district court to address their additional constitutional challenges to the Kansas Funeral Picketing Act which they had presented in *29 their original summary judgment motion. On July 28, 1995, the district court denied the plaintiffs’ motion, finding that
[i]n reviewing the plaintiffs’ arguments and authorities, the Court finds the plaintiffs are not entitled to relief under any of the many federal procedural rules they have cited. No miscarriage of justice or error of law has occurred that warrants a rehearing of the issues in this lawsuit and in the absence of any demonstrable mistake, the Court finds no ground to reconsider its Orders . . . .
Aplts’ Br. att. F at 3 (Dist. Ct. Order dated July 28, 1995).
The plaintiffs do not specify on appeal the particular rule of evidence that they
believe requires the district court to modify or supplement its April 28, 1995 order. In
their original motion to modify or supplement the district court’s order, however, the
plaintiffs cited Federal Rules of Evidence 50, 52(b), 56, 57, 59, 60 and 62, and “any other
applicable rule of law,” as the basis for their motion. Aplts’ App. vol. VII, at 2166 (Mot.
for modification/suppl., dated May 2, 1995). This court has previously held that
“regardless of how it is styled or construed . . . , a motion filed within ten days of the
entry of judgment that questions the correctness of the judgment is properly treated as a
Rule 59(e) motion.” Vreeken v. Davis ,
We review a district court’s ruling on a Fed. R. Civ. P. 59(e) motion under an
abuse of discretion standard. See Brown v. Presbyterian Healthcare Serv.,
The district court in this case denied the plaintiffs’ motion, concluding that there was no miscarriage of justice or error of law warranting reconsideration of its April 28, 1995 order which held the Kansas Funeral Picketing Act to be facially unconstitutional. Based upon our review of the arguments advanced by the plaintiffs and the district court’s July 28, 1995 order, we similarly conclude that the plaintiffs have not demonstrated any manifest error of law in the order or newly discovered evidence which indicates that that *31 order should have been reopened by the district court. Thus, we hold that the district court did not abuse its discretion in denying the plaintiffs’ motion.
IV. The Agreed Stay Order
The plaintiffs next argue that the district court erred in lifting its January 4, 1994 order staying the state criminal prosecutions. Both parties appear to agree that the stay and consolidation order was agreed to by the parties as an alternative to proceeding to an evidentiary hearing on the plaintiffs’ motion for a preliminary injunction. Thus, in effect, the stay order operated as a preliminary injunction of the underlying state prosecutions pending the outcome of the district court’s resolution of the plaintiffs’ challenge to those prosecutions. On April 28, 1995, following the district court’s order giving full faith and credit to the underlying state findings, the district court determined that the stay would remain in effect until the resolution of the plaintiffs’ post-judgment motions. Then, on July 27, 1995, after determining that there were “no unresolved pre- or post-judgment disputes regarding the merits of this lawsuit,” the district court vacated the January 4, 1994 stay order and allowed the state criminal cases to proceed. Aplts’ Br. att. G, at 1 (Dist. Ct. Order dated July 27, 1995).
We review the district court’s lifting of the stay in this case as the denial of a
preliminary injunction under an abuse of discretion standard. See Walmer v. United
*32
States Department of Defense,
There is no basis for the plaintiffs’ contention that the district court erred in lifting the agreed stay order. The plaintiffs do not discuss the Anti-Injunction Act or its exceptions, and our review of the record and applicable case law reveals no basis for applying one of the statutory exceptions. For this reason alone, we would uphold the district court’s dissolution of the stay order. In addition, however, we conclude that under the traditional preliminary injunction factors--which the plaintiffs also fail to discuss--the *33 plaintiffs failed to demonstrate to the district court a “substantial likelihood” that they would succeed on the merits of this appeal. The district court determined that the plaintiffs’ federal claims were barred by the Full Faith and Credit Act and issued its final order and judgment in the case. Therefore, we conclude that the stay, which operated as a preliminary injunction, no longer served any purpose and the district court did not commit an error of law or abuse its discretion in dissolving that order.
V. Plaintiffs’ Standing to Challenge the Anti-Stalking and Harassment Statutes The plaintiffs’ final argument is that the district court erred in granting Ms.
Hamilton summary judgment in ruling that the plaintiffs lacked standing to challenge the Kansas Anti-Stalking Statute, Kan. Stat. Ann. § 21-3438; and telefacsimile amendment to the Kansas Telephone Harassment Statute, Kan. Stat. Ann. § 21-4113. In the underlying § 1983 action, the plaintiffs challenged the constitutionality of these two statutes, in addition to the Kansas Funeral Picketing Act, although none of them were ever charged under either statute. The plaintiffs claimed that they have standing to challenge the statutes because they are threatened with prosecution under both statutes. In their second amended complaint, they complained that the threat of prosecution is illustrated by:
(a) [Ms. Hamilton’s] public statements of intent to prosecute for what she perceives as ‘harassment’ in connection with faxes and pickets; (b) [Ms. Hamilton’s] long standing and oft announced hostility toward plaintiffs and the anti-homosexual pickets; (c) the fact that [Ms. Hamilton] has filed ten criminal actions against plaintiffs in the past four months, all directly *34 related to and arising out of faxes and pickets; (d) the history and context of the passage of these laws; and (e) [Ms. Hamilton’s] recent refusal to communicate her interpretation of the funeral picketing law despite a good faith request by plaintiffs that she do so.
Aplts’ App. vol. II, at 705-06 (Plaintiffs’ Second Amended Complaint, dated Nov. 15, 1993).
On December 23, 1993, in response to Ms. Hamilton’s motion for summary
judgment, the district court ruled that the plaintiffs lacked standing to challenge the
Kansas Telephone Harassment Statute and Kansas Anti-Stalking Statute because they
failed to establish facts demonstrating a genuine threat of prosecution under the statutes
or that the statutes were enacted or amended in response to the plaintiffs’ activities.
Phelps v. Hamilton ,
A. Mootness of the Kansas Anti-Stalking Statute Claim
The first issue we must address is whether the plaintiffs’ constitutional challenge
to the Kansas Anti-Stalking Statute is moot because of a Kansas Supreme Court ruling in
an unrelated case that the statute is unconstitutional. Subsequent to the district court’s
ruling in the underlying case, the Kansas Supreme Court in State v. Bryan,
The constitutional mootness doctrine is grounded in Article III’s requirement that
federal courts only decide “actual, ongoing cases or controversies.” Lewis v. Continental
Bank Corp.,
In applying the constitutional mootness test, we hold that the plaintiffs’ claims related to the Kansas Anti-Stalking Statute are now moot due to the Kansas Supreme Court’s ruling in Bryan. The plaintiffs no longer have a live or redressable claim as related to the Kansas Anti-Stalking Statute because the statute has been held unconstitutional. Therefore, the plaintiffs no longer face any threat of prosecution under the statute as alleged in their Second Amended Complaint. Accordingly, we dismiss the *36 plaintiffs’ appeal of the district court’s denial of their standing to challenge the Kansas Anti-Stalking Statute.
B. Standing to Challenge the Kansas Telephone Harassment Statute
As stated earlier, Article III of the Constitution requires a plaintiff to present an
actual “case or controversy,” which, among other things, requires a plaintiff to show that
they have standing. See Allen v. Wright,
We are also mindful that, because of the significance of First Amendment rights,
the Supreme Court “has enunciated other concerns that justify a lessening of prudential
limitations on standing.” Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 956 (1984); ACORN v. City of Tulsa, Oklahoma,
In this case, the district court first determined that because none of the statutes had
been applied against the plaintiffs, they were without standing to challenge the statutes as
applied.
The plaintiffs have not come forth with proper Rule 56 evidence demonstrating that these statutes were amended or passed in response to the plaintiffs’ activities; that these statutes target the plaintiffs; . . . that their First Amendment rights have been chilled by threats of prosecution under these statutes; and that [Ms. Hamilton] intends or plans to prosecute the plaintiffs under these statutes for conduct arguably protected under the Constitution.
Id. at 1462.
We agree with the district court that the plaintiffs have failed to put forth any
objective evidence that they intend to engage in activities prohibited by the telefacsimile
amendment to the Kansas Telephone Harassment Statute or that they face an imminent
threat of prosecution under the amendment. First, the plaintiffs have not alleged any
intention to violate the amendment through the transmission of telefacsimiles arguably
covered under the amendment. This failure to allege an intention and to support such
intention with objective evidence leaves it entirely speculative whether the plaintiffs will
face any actual or imminent injury from future prosecution. See ACORN,
Second, the plaintiffs offer no evidence to support their allegation that they are
threatened with prosecution under the amendment. Unlike ACORN, where the city had
made clear its intentions to enforce the city ordinance requiring permits for
demonstrations, there is no evidence that Ms. Hamilton has made any threat to prosecute
the plaintiffs for violation of the telefacsimile amendment. The plaintiffs’ allegation that
Ms. Hamilton has threatened to prosecute them generally is not enough to confer
standing. See Poe v. Ullman,
CONCLUSION
In summarizing our holding in this case, we reach the following conclusions: (1) we dismiss Karl Hockenbarger’s and Timothy Phelps’ appeal of the district court’s ruling on their bad faith prosecution claims for lack of standing; (2) we reverse the district court’s judgment dismissing the plaintiffs’ bad faith prosecution claim on full faith and credit grounds and remand this issue to the district court for further proceedings on the particular question of whether the bad faith issue in the post-July 14, 1993 state prosecutions was “actually determined and necessary to support the judgment” in those cases; (3) we affirm the district court’s denial of the plaintiffs’ motion to modify or supplement its April 28, 1995 order; (4) we affirm the district court’s lifting of the stay order; (5) we dismiss the Kansas Anti-Stalking Statute claim on mootness grounds; and (6) we affirm the district court’s ruling that the plaintiffs lacked standing to challenge the telefacsimile amendment to the Kansas Telephone Harassment Statute. Accordingly, we AFFIRM in part, and REVERSE and REMAND in part.
Notes
[*] After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
[2] The underlying state court prosecutions are as follows: Charles F. Hockenbarger: Case 92-CR-3172: Battery (filed Dec. 22, 1992) Case 93-CR-276: Criminal damage to property (filed Feb. 2, 1993) Case 93-CR-2834: Battery/unlawful restraint (filed Oct. 7, 1993) Karl D. Hockenbarger: Case 92-CR-3173: Battery (filed Dec. 22, 1992) Case 93-CR-2835: Battery (two counts)/unlawful restraint (filed Oct. 2, 1993) Jonathan B. Phelps Case 93-CR-274: Assault (filed Feb. 2, 1993) Case 93-CR-1966: Aggravated intimidation of a witness (filed July 15, 1993) Case 93-CR-2833: Battery/unlawful restraint (filed Oct. 7, 1993) Fred W. Phelps, Sr. Case 93-CR-326: Disorderly conduct/ aggravated intimidation of a witness (filed Feb. 17, 1993) Margie J. Phelps
[4] Also before the court are Ms. Hamilton’s motions to strike the plaintiffs’ supplemental authorities and for leave to supplement the record. We grant Ms. Hamilton’s motions insofar as we strike those portions of the plaintiffs’ supplemental authorities memorandum that are argumentative, see Fed. R. App. P. 28(j) (“the letter shall without argument state the reasons for the supplemental citations”), and supplement the record to reflect the current status of the eleven state court criminal proceedings.
[5] The criminal charges against Karl Hockenbarger were dismissed in Case No. 92-CR-3173 on January 3, 1996; and in Case No. 93-CR-2835 on January 23, 1996, after a jury acquitted him on two counts of battery and one count of unlawful restraint. The criminal charges against Timothy Phelps in Case No. 93-CR-2836 were dismissed on January 23, 1996, after he was acquitted by a jury on one count of battery and one count of unlawful restraint.
[6] Ms. Hamilton asserts in her supplemental memorandum that the state courts
have since ruled in five of the post-July 14, 1993 cases--State v. Margie Phelps, Case No.
93-CR-2831, State v. Jonathan Phelps, Case No. 93-CR-2883, State v. Charles
Hockenbarger, Case No. 93-CR-2832, State v. Karl Hockenbarger, Case No. 93-CR-
2835, and State v. Timothy Phelps, Case No. 93-CR-2836--“that those cases were not
brought in bad faith.” Aple’s Mem. in Supp. of Mot. for Leave to Supp. Record, at 3.
However, Ms. Hamilton offers no documentation to support this assertion, nor are we
able to find any evidence of these rulings in the record. Furthermore, even if such
documentation were available, we would still be required to remand to the district court to
determine whether full faith and credit should be afforded to these later proceedings. See
Lyons v. Jefferson Bank & Trust,
[7] Ms. Hamilton argues in the alternative that, even if the district court erred in
applying the full faith and credit doctrine, this court should abstain under Younger v.
Harris,