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Phelps-Roper v. Koster

United States District Court, W.D. Missouri, Central Division

September 2, 2014

SHIRLEY PHELPS-ROPER, Plaintiff,
v.
CHRIS KOSTER, et al., Defendants.

ORDER

FERNANDO J. GAITAN, Jr., District Judge.

Pending before the Court are (1) the Parties' Consent Motion for Order that Plaintiff's Motion for Attorneys' Fees Have the Same Effect under Federal Rule of Appellate Procedure 4(a)(4) as a Timely Motion Under Federal Rule of Civil Procedure 59 (Doc. No. 326); (2) Plaintiff's Motion for Attorneys' Fees and Expenses (Doc. No. 325); and (3) Plaintiff's Motion to Alter or Amend Judgment (Doc. No. 330).

As an initial matter, the parties' consent motion to have plaintiff's motion for attorneys' fees have the same effect under F.R.A.P. 4(a)(4) as a timely motion under Rule 59 (Doc. No. 326) will be GRANTED, pursuant to Fed.R.Civ.P. 58(e).

I. Plaintiff's Motion to Alter or Amend Judgment (Doc. No. 330)

Plaintiff seeks to have the judgment in this case (Doc. No. 322) altered or amended to incorporate this Court's holding that Section 578.501 is unconstitutional and may not be enforced and to clarify that Plaintiff's due process claim (Count XIV) is dismissed, as opposed to the entire case. Plaintiff is concerned that the final judgment does not incorporate into it the Court's prior holding, that Section 578.501 is unconstitutional and may not be enforced, and appears to leave this Court without jurisdiction to enforce its decisions in favor of plaintiff. In particular, plaintiff cites to case law from the Eighth Circuit holding that where a case is dismissed, the district court has no authority to enforce the terms of a settlement that resulted in the dismissal. Christina A. ex rel. Jennifer A. v. Bloomberg , 315 F.3d 990, 993 (8th Cir. 2003). Further, plaintiff argues that a press release from the Attorney General's office reported that the Court's March 10, 2014 judgment "lifted the injunction against enforcing the law that has been in place since January 2009, " when the only law for which enforcement was enjoined in 2009 is Section 578.501, and that statute remains unconstitutional and unenforceable.

In response, defendants assert that Rule 59(e) motions to alter or amend judgment "serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence." B.M. ex rel. Miller v. South Callaway R-II School Dist., 2012 WL 5818001, *1 (W.D. Mo. 2012) (quoting U.S. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)). Defendants argue that there is no manifest error of fact or law here. Plaintiff does not mention a manifest error of fact or present newly discovered evidence, and presumably plaintiff's motion is based on a manifest error of law. However, defendants note that retention of jurisdiction to enforce ruling is highly unusual, and plaintiff cites to no cases in support of such a general power. Furthermore, the fact that plaintiff believes this judgment might cause confusion is not a sufficient reason to alter the judgment; defendants assert that the Court's judgments are perfectly clear, including holding that R.S.Mo. § 578.501 is unconstitutional (Doc. Nos. 282, 283), which decision was affirmed by the Eighth Circuit (Doc. No. 299), and the Court's subsequent judgment that "Section 578.502 is now in effect and enforceable, as modified by the Eighth Circuit in Phelps-Roper v. Koster , 713 F.3d 942 (8th Cir. 2013)" is correct.

In reply, plaintiff argues that the March 10, 2014 judgment omits that Section 578.501 is unconstitutional, which plaintiff argues creates an ambiguity. Plaintiff argues that, while the Court's decisions are clear, neither the 2010 judgment (Doc. No. 283) nor the 2014 judgment (Doc. No. 322) states that section 578.501 is unconstitutional or unenforceable.

Upon review of this motion, the Court believes that plaintiff is not entitled to the relief requested, given that the orders of the Court are clear and unambiguous. The Court's most recent judgment (Doc. No. 322), moreover, incorporates the opinion of the Eighth Circuit, which affirmed the Court's decision finding Section 578.501 unconstitutional. Plaintiff's Motion to Alter or Amend Judgment (Doc. No. 330) is DENIED.

II. Plaintiff's Motion for Attorneys' Fees and Expenses (Doc. No. 325)

Plaintiff has moved for attorneys' fees following the conclusion of this case, arguing she is the prevailing party in this civil rights action. Defendants Koster and Nixon oppose.

A. Background

Missouri's funeral protest statute was enacted in 2006. In July 2006, plaintiff filed the pending action (originally alleging 9 counts, including 6 counts against the state defendants (Nixon and Koster)), and a motion for preliminary injunction. Plaintiff claimed that the funeral protest statutes (R.S.Mo. §§ 578.501 and 578.502) violated her free speech rights (counts I and II), the Free Exercise Clause of the Constitution (counts III and IV) and her freedom of association under the First Amendment (counts V and VI). This court initially denied plaintiff's request for a preliminary injunction on January 26, 2007, finding that there was a substantial governmental interest in protecting mourners. An interlocutory appeal was taken, and a panel of the Eighth Circuit reversed the denial of the preliminary injunction, finding that plaintiff was likely to prove that any interest the state had in protecting funeral mourners from unwanted speech was outweighed by the First Amendment right to free speech. The defendants then filed a petition for rehearing, and rehearing was held in abeyance pending resolution of another case. Subsequently, the panel granted rehearing, issued a new opinion, and again reversed denial of the preliminary injunction. The defendants filed another petition for rehearing, which was denied. Then, defendants filed a petition for writ of certiorari, which the Supreme Court denied. Upon remand (in January 2009), the Court entered a preliminary injunction prohibiting defendants from enforcing the funeral protest statute.

Upon remand, the plaintiff amended her complaint twice, adding a total of five more counts (including three more against the state defendants), bringing the total to fourteen counts. The three claims added against the state defendants included a claim for violation of Missouri law (count XII), a claim for violation of the Missouri Constitution's separation of powers (count XIII), and a claim for violation of the Due Process Clause (count XIV). The Court denied the state defendants' motion to dismiss, and the remaining parties engaged in discovery. After discovery closed, cross motions for summary judgment were filed. The Court heard oral argument on the cross-motions in Kansas City on June 8, 2010. At oral argument, defendants introduced a new defense, and moved for leave to file an amended answer to add a preemption defense. The motion was denied. Plaintiff filed witness lists, exhibit lists, deposition designations, voir dire, jury instructions, motions in limine, and trial brief. Plaintiff also objected to defendants' similar filings. Shortly before trial, plaintiff moved to dismiss certain counts (Docs. 175 and 182), stipulated to dismissal of other counts (Doc. No. 195) and entered into consent judgments with the non-State defendants (Doc. Nos. 279-81). On August 16, 2010, the Court entered an order granting in part and denying as moot in part plaintiff's motion for summary judgment, finding the funeral protest statutes to be unconstitutional infringement on plaintiff's First Amendment free speech rights. Thus, the Court granted relief on Counts I and II of plaintiff's second amended complaint, and denied the rest of the relief requested by plaintiff against the state defendants as moot.

On appeal, the Court of appeals reversed its previous position and held that the State "has shown a significant government interest in protecting the peace and privacy of funeral attendees for a short time and in a limited space so that they may express the respect they seek to accord to the deceased person who was once their own." Phelps-Roper v. Koster , 713 F.3d 942, 951 (8th Cir. 2013). The state argues that this was a significant victory for them and had been argued from the beginning of the case. Plaintiff, however, succeeded on appeal as to her arguments that the terms "in front of or about" (in Section 578.501) and the portion of the definition of "funeral" that contained "processions" (in both Sections 578.501 and 578.502) were not narrowly tailored. On this basis, the Eighth Circuit found Section 578.501 to be an unconstitutional infringement on free speech rights protected by the First Amendment. The Eighth Circuit, however, severed "processions" from 578.502, preserving Missouri law placing a reasonable time, place, and ...


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