COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 090639

 

Repealing Section 50-162, Code of Ordinances, entitled Funeral picketing, and directing the City Attorney to monitor litigation for the possibility of enacting new funeral picketing regulations.

WHEREAS, the City Council enacted Section 50-162, Code of Ordinances, to restrict picketing activities at funerals on March 25, 1993; and

 

WHEREAS, following picketing of the funerals of members of the military killed serving the United States in the wars in Iraq and Afghanistan many states and cities throughout the United States enacted restrictions against picketing activities at funerals; and

 

WHEREAS, the State of Missouri enacted the Specialist Edward Lee Myers Law imposing such restrictions; and

 

WHEREAS, this law was challenged by members of the Westboro Baptist Church of Topeka, Kansas claiming it violated the First Amendment to the Constitution of the United States; and

 

WHEREAS, the federal Eighth Circuit Court of Appeals has ruled that the government has no compelling interest in protecting an individual from unwanted speech outside of the residential context; and

 

WHEREAS, the federal Eighth Circuit Court of Appeals has more specifically stated:

 

the home is different, and, in our view, unique. Allowing other locations, even churches, to claim the same level of constitutionally protected privacy would, we think, permit government to prohibit too much speech and other communication. We recognize that lines have to be drawn, and we choose to draw the line in such a way as to give the maximum possible protection to speech, which is protected by the express words of the Constitution; and

 

WHEREAS, applying these rules the federal Eighth Circuit Court of Appeals, acting en banc, has enjoined the enforcement of the Missouri statutes restricting picketing at funerals; and

 

WHEREAS, on March 30, 2009 District Judge Gary Fenner enjoined the enforcement of the St. Joseph, Missouri funeral picketing restrictions based upon the request of the City of St. Joseph to avoid needless litigation; and

 

WHEREAS, on April 14, 2009, Chief District Judge Fernando J. Gaitan, Jr., enjoined the enforcement of the funeral picketing restrictions enacted by the City of Gladstone on January 8, 2007 based upon the rulings of the Eighth Circuit Court of Appeals stating that the Westboro Baptist Church has sufficiently demonstrated:

 

(1)   a likelihood of success on the merits,

(2)   a threat of irreparable injury if a preliminary injunction does not issue;

(3)   an injunction would not cause substantial harm to others; and

(4)   an injunction would be in the public interest; and

 

WHEREAS, on June 29, 2009 the United States Supreme Court refused to accept for review the decision of the Eighth Circuit Court of Appeals, thus leaving that decision the law in the Eighth Circuit; and

 

WHEREAS, the City has been informed that it will be sued based upon the rulings of the Eighth Circuit Court of Appeals should the City choose to retain Section 50-162, Code of Ordinances; and

 

WHEREAS, despite the despicable nature of hateful pickets at funerals the speech of the Westboro Baptist Church and its members is protected by the First Amendment and when weighed against the rights of persons to mourn the loss of family and friends at funerals or other services, the Eighth Circuit Court of Appeals places greater weight on the free expression of repulsive ideas; and

 

WHEREAS, the City can, and does, regulate behavior that does not require the consideration of the content of speech through its Code of Ordinances, specifically regulation of traffic and disorderly conduct, thus requiring an exercise of free speech by the Westboro Baptist Church to not cause violations of the Citys controlling ordinances; and

 

WHEREAS, by taking this action the City Council will not risk contributing financially to the support of the Westboro Baptist Church funeral picketing activities; and

 

WHEREAS, the almost certain result of litigation challenging Section 50-162, Code of Ordinances based on the rulings of Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), cert. denied 77 U.S.L.W. 3708 (U.S. June 29, 2009) and Phelps-Roper v. City of Gladstone, 2009 WL 995565 (W.D.Mo. 2009) is the invalidation of Section 50-162, Code of Ordinances, and the payment of attorneys fees and litigation costs to members of the Westboro Baptist Church; NOW, THEREFORE

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. Section 50-162, Code of Ordinances is repealed.

 

Section 2. The City Attorney is directed to monitor the litigation challenging the Specialist Edward Lee Myers Law and submit to the Council for its consideration appropriate legislation if permitted by a final decision of the courts.

 

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Approved as to form and legality:

 

 

_______________________________

William Geary

Assistant City Attorney