Phelps-Roper et al v. St. Charles, Missouri

Filing 97

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the preliminary injunction entered in this case is VACATED, and Defendant's motion for summary judgment is GRANTED with respect to Plaintiffs' claims under the federal constitution (Coun ts I and II). (Doc. No. 69.) IT IS FURTHER ORDERED that Plaintiffs' state law claims (Counts III and IV) are DISMISSED without prejudice. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 11/15/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHIRLEY L. PHELPS-ROPER and
MEGAN PHELPS-ROPER,
Plaintiffs,
v.
COUNTY OF ST. CHARLES,
MISSOURI,
Defendant.

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No. 4:10CV02232 AGF

MEMORANDUM AND ORDER
This action challenging the constitutionality of an ordinance of Defendant County
of St. Charles, Missouri, (“the County”) is before the Court on the parties’ cross motions
for summary judgment. For the reasons set forth below, Plaintiffs’ motion shall be
denied, Defendant’s motion shall be granted with respect to Plaintiffs’ federal claims, and
the Court will decline to exercise its supplemental jurisdiction over Plaintiffs’ state claim.
The two Plaintiffs are members of Westboro Baptist Church. The version of the
ordinance at issue, Ordinance 10-112, was passed by the County on December 21, 2010.
The ordinance prohibits picketing at or near funerals. Plaintiffs assert that enforcement
of the ordinance will violate their federal constitutional rights to free speech, religious
liberty, and assembly, as well as their federal due process rights. They also claim that the
ordinance violates Missouri’s Religious Freedom Restoration Act, Mo. Rev. Stat. §1.302.
Plaintiffs represent that they picket near certain funerals, including those of American

soldiers, to publish Plaintiffs’ religious beliefs that God is punishing America for its
failure to obey God’s word on issues such as homosexuality.
The facial purposes of Ordinance 10-112 are:
[T]o protect the privacy of grieving families and to preserve the peaceful
character of cemeteries, mortuaries, churches, and other places of worship
during a funeral while still providing picketers and protestors the
opportunity to communicate their message at a time and place that
minimizes the interference with the rights of families participating in
funerals.
(Doc. No 31-3.)
The ordinance creates the civil offense of “unlawful picketing of a funeral” which
a person commits if he or she pickets a funeral “during the period from one hour prior to
the commencement of any funeral through one hour following the cessation of any
funeral.” “Picketing of a funeral” consists of “protest activities … within three hundred
feet of the premises of a cemetery, mortuary, church, or other place of worship or other
location during, and which target, a funeral.” “Funeral” includes “the ceremonies and
memorial services held in connection with the burial or cremation of the dead” but
specifically excludes funeral processions and wakes. A violation of Ordinance 10-112
may result in a fine of up to $1,000, but no incarceration.
On January 24, 2011, the Court granted Plaintiffs’ motion for a preliminary
injunction. The Court believed that the Eighth Circuit case of Phelps-Roper v. Nixon,
545 F.3d 685 (8th Cir. 2007), mandated the conclusion that Plaintiffs were sufficiently
likely to succeed on their claim that the state’s interests were outweighed by the First

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Amendment to support a preliminary injunction. After the parties filed motions for
summary judgment, the Court, with the agreement of the parties, stayed this case
pending resolution by the Eighth Circuit Court of Appeals en banc of Phelps-Roper v.
City of Manchester, No. 3197EM. On October 16, 2012, the Eighth Circuit issued its
decision in City of Manchester, and the stay was lifted. 697 F.3d 678 (8th Cir. 2012).
Thereafter, the Court granted the parties’ joint motion for a second stay pending
resolution by the Eighth Circuit of Phelps-Roper v. Kostner, No. 10-3076. On April 26,
2013, the Eighth Circuit issued its decision in that case and the second stay in the present
case was lifted. 713 F.3d 942 (8th Cir. 2013). The parties completed their briefing on
their motions for summary judgment which are now ripe for resolution.
In City of Manchester the en banc Court of the Eighth Circuit considered a funeral
protest ordinance similar to Ordinance 10-112. The ordinance in City of Manchester
restricted “picketing or other protest activities,” within 300 feet of any funeral or burial
site during or within one hour before or one hour after the conducting of a funeral or
burial service at that place. The ordinance defines “other protest activities” as “any
action that is disruptive or undertaken to disrupt or disturb a funeral or burial service.”
The Eighth Circuit overruled aspects of Nixon and held that the ordinance in
question was content neutral, thereby warranting intermediate scrutiny; served a
significant government interest of protecting the peace and privacy of funeral attendees;
was narrowly tailored, that is, did not burden substantially more speech than necessary to
further the state’s legitimate interest; and left open ample alternative channels of
communication. City of Manchester, 697 F.3d at 688-89, 692-94 (8th Cir. 2012). And in
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Kostner, the Eighth Circuit held that an analogous state funeral protest law was
constitutional for the same reasons, with the exception of the inclusion of “processions”
in the definition of “funeral.” Kostner, 713 F.3d at 953-54.
The Court believes that under these precedents, Plaintiffs’ federal constitutional
challenges to Ordinance 10-112 fail. The Court finds unpersuasive the arguments
presented by Plaintiffs in response to the Court’s Order to show cause on October 22,
2012, and in reply to Defendant’s motion for summary judgment. Plaintiffs attempt to
distinguish Ordinance 10-112 from the ordinance in City of Manchester on the ground
that (1) Ordinance 10-112’s proscription is not limited to speech that is disruptive or
undertaken to disrupt or disturb a funeral; (2) the size of its non-picket zone is too large;
and (3) the period during which pickets are banned is too long. This Court concludes that
under the new decisions by the Eighth Circuit, that Court would find Plaintiffs’ federal
constitutional claims without merit, as does this Court. Accordingly, Defendant’s motion
for summary judgment will be granted on those claims.
With the federal claims resolved, the Court will decline to exercise supplemental
jurisdiction over the remaining state claims against Defendant, pursuant to 28 U.S.C.
§ 1367(c)(3). See, e.g., Witte v. Culton, No. 4:11CV2036 ERW, 2013 WL 4666334, at
*2 n.2 (E.D. Mo. Aug. 2013); Eckert v. Bowen, No. 1:11CV211 LMB, 2013 WL
3884165, at *7 (E.D. Mo. July 26, 2013).

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Accordingly,
IT IS HEREBY ORDERED that the preliminary injunction entered in this case is
VACATED, and Defendant’s motion for summary judgment is GRANTED with respect
to Plaintiffs’ claims under the federal constitution (Counts I and II). (Doc. No. 69.)
IT IS FURTHER ORDERED that Plaintiffs’ state law claims (Counts III and
IV) are DISMISSED without prejudice.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2013.

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