Kansas funeral picketing law struck down

[DaJudge]

Posted on Tue, Mar. 11, 2008 10:02 AM

Kansas funeral picketing law struck down
BY DAVID KLEPPER

The Star?s Topeka Correspondent


TOPEKA | 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.

Fearing the church could win a legal challenge against the law, lawmakers
inserted a so-called ?trigger? provision designed to test the law?s validity
before it could be implemented.

The provision required the attorney general to seek an advisory opinion from
the courts before the law went into effect. The trigger helped persuade
lawmakers worried that the state would end up paying the church?s legal
fees if the law were struck down.

But the court ruled that the trigger itself was unconstitutional, violating the
seperation of powers by making the court a type of advisory panel to the
Legislature.

The law would have banned protests within 150 feet of a funeral for one
hour before and two hours after a service. Violators would face fines and
even jail time.

In a statement accompanying today?s ruling, the Supreme Court said it
delivered the decision early to give lawmakers time to work on a new
funeral picketing law before the legislative session ends in May.

To reach David Klepper, call 785-354-1388 or send email to

dklepper@kcstar.com (dklepper@kcstar.com).

[Camp]

They are approaching the law wrong. They should write the law such that those picketing a military funeral give up thier rights that protect them from physical attack :D

[Steve]

The provision required the attorney general to seek an advisory opinion from the courts before the law went into effect. The trigger helped persuade lawmakers worried that the state would end up paying the church?s legal fees if the law were struck down.

But the court ruled that the trigger itself was unconstitutional, violating the
seperation of powers by making the court a type of advisory panel to the
Legislature.

I didn't know the separation of powers doctrine meant that the different parts of the government weren't allowed to talk to each other or ask for advice or opinions. Very strange... :shrug:

[LONEWOLF]

IMO it is un American to picket a military funeral or any funeral for that matter, it is disrespectful, disgraceful and just wrong to both the families and the soldier who gave his life, so they could do this. Would they like it if during the preachers serman (sp) the military entered their church and took firing practice, or did manuvers etc.. Maybe people should picket their church accusing them of worshiping a false God. I guess they forgot all about the "Love thy neighbor" gig. Maybe the government should review their charter, call them a cult etc.. But what do I know I was raised to show respect for our soldiers and all people a like. Sorry for the :rant: This crap just irritates me.

[DaJudge]

I didn't know the separation of powers doctrine meant that the different parts of the government weren't allowed to talk to each other or ask for advice or opinions. Very strange... :shrug:
Federal courts will not hear a case unless there is a real dispute or controversy--no advisory opinions.

State laws vary. Some follow the Federal rule, others allow for seeking an advisory opinion on legal issues. However, NONE that I know of allow the Courts to opine BEFORE a law becomes effective. Separation of powers means legislatures legislate and THEN courts decide.

[Sound_Man]

This makes me ill.

[Steve]

However, NONE that I know of allow the Courts to opine BEFORE a law becomes effective. Separation of powers means legislatures legislate and THEN courts decide.

Well, that's just SO much more efficient and cost effective. :rolleyes:

[DaJudge]

Well, that's just SO much more efficient and cost effective. :rolleyes:
The problem with it is that if the court rules in advance that the law is OK they are locked into that position regardless of how it gets applied later.

My court doesn't give legal advice to the City Council on proposed ordinances--that's the City Attorney's job. Similarly the Attorney General is the legal advisor to the Governor and the Legislature. IF a law is enacted, and IF someone challenges it, THEN the courts will decide, based on the specific facts and circumstances involved, whether it is constitutional or not.

[Steve]

The problem with it is that if the court rules in advance that the law is OK they are locked into that position regardless of how it gets applied later.

Isn't ruling on the Constitutionality of a law and ruling on how that law is applied two very different things?

[DaJudge]

Isn't ruling on the Constitutionality of a law and ruling on how that law is applied two very different things?
Yes, there are 2 kinds of unconstitutionality: unconstitutional per se and unconstitutional as applied.

[Steve]

Yes, there are 2 kinds of unconstitutionality: unconstitutional per se and unconstitutional as applied.

Thought so. What would be the problem with an a priori ruling on the constitutionality per se of a proposed law? If nothing changes in the wording of the law between the ruling and passing the law, why does it matter when the per se ruling is made?

I appreciate your insight on this; I'm trying to understand why the separation of powers itself would make it unconstitutional. Doesn't make sense to me. :shrug:

[ZappBranigan]

Thought so. What would be the problem with an a priori ruling on the constitutionality per se of a proposed law? If nothing changes in the wording of the law between the ruling and passing the law, why does it matter when the per se ruling is made?

I appreciate your insight on this; I'm trying to understand why the separation of powers itself would make it unconstitutional. Doesn't make sense to me. :shrug:

There isn't a case or controversy yet, so there's nothing for the court to rule on. There is no opposing party, in other words, raising an argument against the law. Were the court to rule that the law is constitutional without hearing from an opposing party, they might miss an argument that could be raised by a genuinely adverse party, which would put you right back at square one.

[ZappBranigan]

Well, that's just SO much more efficient and cost effective. :rolleyes:

Efficiency and cost effectiveness are considerations, yes, but they are not the only considerations. Ensuring that people's 1st amendment rights are not in danger of being violated is arguably a more important value than "efficiency."

[Steve]

Thanks for the insight guys. :thumbsup: It seems simple to my non-lawyer brain but there are obvious issues I'm not considering.

Hijack: I know a guy who has a technical background almost identical to mine, but he also has 'Esq.' behind his name and titles. He makes about a bazillion dollars a year only taking cases he's truly interested in. I've halfway considered going that direction, but the thought of going back to college and taking the bar at my age is depressing.

/hijack

[DaJudge]

Thought so. What would be the problem with an a priori ruling on the constitutionality per se of a proposed law? If nothing changes in the wording of the law between the ruling and passing the law, why does it matter when the per se ruling is made?

I appreciate your insight on this; I'm trying to understand why the separation of powers itself would make it unconstitutional. Doesn't make sense to me. :shrug:
The first US Supreme Court Pronouncement on the subject:

In 1793, President George Washington directed Secretary of State Thomas
Jefferson to ask the Supreme Court to answer numerous legal questions
about America's neutral status in the European wars following the French
Revolution. The Washington Administration, however, recognized a
threshold issue: "whether the public may, with propriety, be availed of
advice on these questions."' A few weeks later, five Justices sent the
President the following reply: The Lines of Separation drawn by the
Constitution between the three Departments of Government-their being in
certain Respects checks upon each other-and our being Judges of a court
in the last Resort-are Considerations which afford strong arguments against
the Propriety of our extrajudicially deciding the questions alluded to;
especially as the Power given by the Constitution to the President of calling
on the Heads of Departments for opinions, seems to have been purposely as
well as expressly limited to the executive Departments.

We exceedingly regret every Event that may cause Embarrassment to your
administration; but we derive Consolation from the Reflection, that your
Judgment will discern what is Right, and that your usual Prudence, Decision
and Firmness will surmount every obstacle to the Preservation of the Rights,
Peace, and Dignity of the united States. We have the Honor to be, with
perfect Respect, Sir, your most obedient and most h[um]ble Servants.

As noted above, some States, including Colorado, do not agree. This
excerpt from Wikipedia tracks pretty well with my understanding of the
topic:

" United States federal courts


The United States Supreme Court (http://en.wikipedia.org/wiki/United_States_Supreme_Court) has determined that the case or (http://en.wikipedia.org/wiki/Case_or_controversy)
controversy requirement found in Article Three of the United States (http://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution)
Constitution prohibits United States federal courts (http://en.wikipedia.org/wiki/United_States_federal_courts) from issuing advisory
opinions.

In a letter to President George Washington (http://en.wikipedia.org/wiki/George_Washington), replying to the president's
request for such an opinion, then-Chief Justice John Jay (http://en.wikipedia.org/wiki/John_Jay) replied that it
would violate the separation of powers (http://en.wikipedia.org/wiki/Separation_of_powers) for the Supreme Court to provide
such an opinion, noting that the president could rely on advice from anyone
within the executive branch (http://en.wikipedia.org/wiki/Executive_branch) under Article Two of the United States (http://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution)
Constitution which expressly permits the President of the United States (http://en.wikipedia.org/wiki/President_of_the_United_States) to
"require the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any subject relating to the Duties of their
respective Offices".

Over a century later, in the case of Muskrat v. United States (http://en.wikipedia.org/wiki/Muskrat_v._United_States), 219 U.S. 346 (http://en.wikipedia.org/wiki/Case_citation)
(1911 (http://en.wikipedia.org/wiki/1911)), the Court dismissed a case because there was no "actual
controversy" between the parties; thus, any opinion rendered would be
advisory.

United States state courts

Many state courts (http://en.wikipedia.org/wiki/State_court) are similarly barred from issuing advisory opinions,
although there are often specific exceptions to these limitations. Some
states, like Rhode Island (http://en.wikipedia.org/wiki/Rhode_Island), permit the governor to certify questions on the
constitutionality of laws to the state supreme court. Also, some states
require their supreme court to give advisory opinions on particular matters,
such as whether proposed amendments to the state constitution (http://en.wikipedia.org/wiki/State_constitution_%28United_States%29) violate
the U.S. Constitution.

Eight states have provisions in their constitutions permitting or requiring
their supreme courts to give advisory opinions to the governor or
legislature: Colorado (http://en.wikipedia.org/wiki/Colorado), Florida (http://en.wikipedia.org/wiki/Florida), Maine (http://en.wikipedia.org/wiki/Maine), Massachusetts (http://en.wikipedia.org/wiki/Massachusetts), Michigan (http://en.wikipedia.org/wiki/Michigan), New (http://en.wikipedia.org/wiki/New_Hampshire)
Hampshire, Rhode Island (http://en.wikipedia.org/wiki/Rhode_Island) and South Dakota (http://en.wikipedia.org/wiki/South_Dakota). Two states provide for supreme
court advisory opinions by statute: Alabama (http://en.wikipedia.org/wiki/Alabama) and Delaware (http://en.wikipedia.org/wiki/Delaware). The texts of all
the advisory opinion provisions are collected in M. Topf, "The Jurisprudence
of the Advisory Opinion Process in Rhode Island," Roger Williams University
Law Review, Vol. 2, Spring 1997, at 254-256. The article also gives a
general treatment of how the advisory opinion process works.

Advisory opinions should not be confused with certified questions by one
court to another, which are permissible. U.S. federal courts, when
confronted with real cases or controversies in which the federal court's
decision will turn in part on a question of state law, occasionally ask the
highest court of the relevant state to give an authoritative answer to the
state-law question, which the federal court will then apply to its resolution
of the federal case (see e.g. Pullman abstention (http://en.wikipedia.org/wiki/Abstention_doctrine#Pullman_Abstention)). Because the state court
in such circumstances is giving an opinion that affects an actual case, it is
not considered to be issuing an advisory opinion.

Florida

The Florida Supreme Court (http://en.wikipedia.org/wiki/Florida_Supreme_Court) has two specific constitutional grants of
authority to issue advisory opinions. First, it can issue an advisory opinion
to the Governor of Florida (http://en.wikipedia.org/wiki/Governor_of_Florida) on constitutional questions affecting the powers
of the state's executive branch (http://en.wikipedia.org/wiki/Executive_branch). Second, it can issue an advisory opinion to
the Attorney General (http://en.wikipedia.org/wiki/Attorney_General) about two narrow legal issues affecting proposed
citizens' initiatives to amend the state Constitution (http://en.wikipedia.org/wiki/Florida_Constitution). These two issues are
whether the ballot summary is fair and accurate and whether the initiative
contains only a single subject as required by law. The Florida Supreme
Court cannot include any other issue in its advisory opinion, including
whether or not the initiative would be constitutional if adopted by the
voters in the required statewide election."

[ZappBranigan]

Thanks for the insight guys. :thumbsup: It seems simple to my non-lawyer brain but there are obvious issues I'm not considering.

Hijack: I know a guy who has a technical background almost identical to mine, but he also has 'Esq.' behind his name and titles. He makes about a bazillion dollars a year only taking cases he's truly interested in. I've halfway considered going that direction, but the thought of going back to college and taking the bar at my age is depressing.

/hijack

How old are you? I was 38 when I started law school, 43 when I graduated and 44 when I passed the bar exam. So I'm not exactly a spring chicken either!

ETA: I was not even close to being the oldest person in my class!

[Steve]

How old are you? I was 38 when I started law school, 43 when I graduated and 44 when I passed the bar exam. So I'm not exactly a spring chicken either!

Using your timeline I'd be 56 when I passed the bar exam. :eek: I'm guessing a "rich" old white guy ain't gonna get any preference points to get into law school. :D It would also wreak havoc with our retirement plan and savings.

[DaJudge]

How old are you? I was 38 when I started law school, 43 when I graduated and 44 when I passed the bar exam. So I'm not exactly a spring chicken either!

ETA: I was not even close to being the oldest person in my class!
He's gonna be 51 this month. Happy B'day, Steve. :flipoff2: You could finish Law School and have 20 productive years if you wish to forego retirement until age 65. :D

[Steve]

He's gonna be 51 this month. Happy B'day, Steve. :flipoff2: You could finish Law School and have 20 productive years if you wish to forego retirement until age 65. :D

I think you meant to say age 75, not 65. I'll pass on that. And thanks! :D

[Oscar]

How do you keep all this stuff in your head?

[denverd0n]

Ensuring that people's 1st amendment rights are not in danger of being violated is arguably a more important value than "efficiency."
I don't think there's any room for argument. It is patently obvious to me that protecting individual rights comes before efficiency!

[DaJudge]

I think you meant to say age 75, not 65. I'll pass on that. And thanks! :D
Yes, I am math challenged. That's why I went to Law School instead of Med School.

[ZappBranigan]

Using your timeline I'd be 56 when I passed the bar exam. :eek: I'm guessing a "rich" old white guy ain't gonna get any preference points to get into law school. :D It would also wreak havoc with our retirement plan and savings.


Getting into law school isn't that hard, it's getting into the prestigious law schools like Harvard or Duke that's really difficult. Full time is 3 years, in my case it took 5 because my Uncle Sam decided I needed a couple of year-long "vacations" in the middle of it. :D DU has a 5 year part-time program for people who are working but AFAIK they're the only ones in the region that have such a program.

But it really is a huge investment of time, if not money, so I understand where you're coming from. If you just want to learn about the law for your own education I think there are a few non accredited online schools that offer pretty complete programs. You won't be able to take the bar exam (which is about as much fun as a colonoscopy, so you're not missing much) but you'll learn a lot about both the theory and practice of law.

[Yota]

The "trigger" was struck down. Does this not leave room for the law to reborn without it and let the thing work its way through the court system again?

[DaJudge]

The "trigger" was struck down. Does this not leave room for the law to reborn without it and let the thing work its way through the court system again?
Yep. Last paragraph of the OP:

In a statement accompanying today?s ruling, the Supreme Court said it
delivered the decision early to give lawmakers time to work on a new
funeral picketing law before the legislative session ends in May.

[ZappBranigan]

The "trigger" was struck down. Does this not leave room for the law to reborn without it and let the thing work its way through the court system again?

As DaJudge said, they can pass the amended version of the law but chances are good it will be struck down by the courts, and the petitioners may even be able to get the state to pay their legal costs.

As distasteful and disgusting as the funeral picketing is, it's not something the legislature really has the power to fix. The Constitution has to protect free speech, even if we find the exercise of that free speech repugnant and offensive. It might feel good (in the short term) to pass such a law but it would be a waste of time and money, and I'm sure the good people of Kansas have more important tasks for their legislature.

[Steve]

I'm sure the good people of Kansas have more important tasks for their legislature.

Like changing school science texts and passing laws about creationism being taught as a fact as much as evolution? That's much more useful. :silly:

[CLYDE]

They are approaching the law wrong. They should write the law such that those picketing a military funeral give up thier rights that protect them from physical attack :D
scumbag church pickets funerals other than military unfortunately, alos cops, firefighters, and anyone else that might be contraversial.

[ZappBranigan]

Like changing school science texts and passing laws about creationism being taught as a fact as much as evolution? That's much more useful. :silly:

They elected those people to office. :shrug:

It's been said that in a democracy people get the government they deserve....:P

[ZappBranigan]

scumbag church pickets funerals other than military unfortunately, alos cops, firefighters, and anyone else that might get these attention whores on the news.

Fixed it for ya...;)

[Steve]

It's been said that in a democracy people get the government they deserve....:P

Very true.

[DaJudge]

As DaJudge said, they can pass the amended version of the law but chances are good it will be struck down by the courts, and the petitioners may even be able to get the state to pay their legal costs.

As distasteful and disgusting as the funeral picketing is, it's not something the legislature really has the power to fix. The Constitution has to protect free speech, even if we find the exercise of that free speech repugnant and offensive. It might feel good (in the short term) to pass such a law but it would be a waste of time and money, and I'm sure the good people of Kansas have more important tasks for their legislature.
Gotta disagree with you on this one. Reasonable time, place and manner
restrictions can be applied to the exercise of First Amendment rights. I'm
not sure what the Kansas legislature is afraid of; Colorado has funeral
protection on the books and no successful challenges to date.


18-9-101. Definitions. (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=1da268e1.69200c34.0.0&q=%5BGroup%20%2718-9-101%27%5D)

Statute text

As used in this part 1, unless the context otherwise requires:

(1) "Destructive device" means any material, substance, or mechanism
capable of being used, either by itself or in combination with any other
substance, material, or mechanism, to cause sudden and violent injury,
damage, destruction, or death.

(1.4) "Funeral" means the ceremonies, rituals, and memorial services held
in connection with the burial, cremation, or memorial of a deceased person,
including the assembly and dispersal of the mourners.

(1.5) "Funeral site" means a church, synagogue, mosque, funeral home,
mortuary, cemetery, gravesite, mausoleum, or other place where a funeral
is conducted.

(2) "Riot" means a public disturbance involving an assemblage of three or
more persons which by tumultuous and violent conduct creates grave
danger of damage or injury to property or persons or substantially obstructs
the performance of any governmental function.
History

Source: L. 71: R&RE, p. 466, ? 1. C.R.S. 1963: ? 40-9-101 (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=40-9-101&sid=1da268e1.69200c34.0.0#JD_40-9-101). L. 95: (2)
amended, p. 1255, ? 18, effective July 1. L. 2006: (1.4) and (1.5) added,
p. 1198, ? 2, effective May 26.

Annotations

Cross references: For the title of and legislative declaration contained in
the 2006 act enacting subsections (1.4) and (1.5), see section 1 of
chapter 262, Session Laws of Colorado 2006.


18-9-106. Disorderly conduct. (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=1da268e1.69200c34.0.0&q=%5BGroup%20%2718-9-106%27%5D)

Statute text

(1) A person commits disorderly conduct if he or she intentionally,
knowingly, or recklessly:

(a) Makes a coarse and obviously offensive utterance, gesture, or display in
a public place and the utterance, gesture, or display tends to incite an
immediate breach of the peace; or

(b) (Deleted by amendment, L. 2000, p. 708, ? 39, effective July 1, 2000.)

(c) Makes unreasonable noise in a public place or near a private residence
that he has no right to occupy; or

(d) Fights with another in a public place except in an amateur or
professional contest of athletic skill; or

(e) Not being a peace officer, discharges a firearm in a public place except
when engaged in lawful target practice or hunting; or

(f) Not being a peace officer, displays a deadly weapon, displays any article
used or fashioned in a manner to cause a person to reasonably believe that
the article is a deadly weapon, or represents verbally or otherwise that he
or she is armed with a deadly weapon in a public place in a manner
calculated to alarm.

(2) Repealed.

(3) (a) An offense under paragraph (a) or (c) of subsection (1) of this
section is a class 1 petty offense; except that, if the offense is committed
with intent to disrupt, impair, or interfere with a funeral, or with intent to
cause severe emotional distress to a person attending a funeral, it is a
class 2 misdemeanor.

(b) An offense under paragraph (d) of subsection (1) of this section is a
class 3 misdemeanor.

(c) An offense under paragraph (e) or (f) of subsection (1) of this section is
a class 2 misdemeanor.

[DaJudge]

18-9-107. Obstructing highway or other passageway. (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=1da268e1.69200c34.0.0&q=%5BGroup%20%2718-9-107%27%5D)

Statute text

(1) An individual or corporation commits an offense if without legal privilege
such individual or corporation intentionally, knowingly, or recklessly:

(a) Obstructs a highway, street, sidewalk, railway, waterway, building
entrance, elevator, aisle, stairway, or hallway to which the public or a
substantial group of the public has access or any other place used for the
passage of persons, vehicles, or conveyances, whether the obstruction
arises from his acts alone or from his acts and the acts of others; or

(b) Disobeys a reasonable request or order to move issued by a person the
individual or corporation knows to be a peace officer, a firefighter, or a
person with authority to control the use of the premises, to prevent
obstruction of a highway or passageway or to maintain public safety by
dispersing those gathered in dangerous proximity to a fire, riot, or other
hazard.

(2) For purposes of this section, "obstruct" means to render impassable or
to render passage unreasonably inconvenient or hazardous.

(3) An offense under this section is a class 3 misdemeanor; except that
knowingly obstructing the entrance into, or exit from, a funeral or funeral
site, or knowingly obstructing a highway or other passageway where a
funeral procession is taking place is a class 2 misdemeanor.

History

Source: L. 71: R&RE, p. 468, ? 1. C.R.S. 1963: ? 40-9-107 (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=40-9-107&sid=1da268e1.69200c34.0.0#JD_40-9-107). L. 97: IP(1)
and (1)(b) amended, p. 1012, ? 17, effective August 6. L. 2006: (3)
amended, p. 1198, ? 4, effective May 26.

Annotations

Cross references: (1) For obstructing highways, see ? 43-5-301 (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=43-5-301&sid=1da268e1.69200c34.0.0#JD_43-5-301).


18-9-108. Disrupting lawful assembly. (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=1da268e1.69200c34.0.0&q=%5BGroup%20%2718-9-108%27%5D)

Statute text

(1) A person commits disrupting lawful assembly if, intending to prevent or
disrupt any lawful meeting, procession, or gathering, he significantly
obstructs or interferes with the meeting, procession, or gathering by
physical action, verbal utterance, or any other means.

(2) Disrupting lawful assembly is a class 3 misdemeanor; except that, if the
actor knows the meeting, procession, or gathering is a funeral, it is a class
2 misdemeanor.

History

Source: L. 71: R&RE, p. 468, ? 1. C.R.S. 1963: ? 40-9-108 (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=40-9-108&sid=1da268e1.69200c34.0.0#JD_40-9-108). L. 2006: (2)
amended, p. 1199, ? 5, effective May 26.

Annotations

Cross references: For the title of and legislative declaration contained in
the 2006 act amending subsection (2), see section 1 of chapter 262,
Session Laws of Colorado 2006.

Annotations

C.J.S. See 27 C.J.S., Disorderly Conduct, ?? 2-5.

Statute is constitutional as applied. By adopting an actual disruption
standard that focuses on punishment for actual disruption of an assembly,
this section is constitutionally based on conduct, not content. Dempsey v.
People, 117 P.3d 800 (Colo. 2005).

Under the terms of this section, a defendant must intend to disrupt a
meeting. That element of the offense subsumes two notions. First, the
nature of the assembly or meeting defines the bounds of appropriate
protest. The standard is drawn from the implicit customs and usages or
explicit rules germane to a given meeting. Once the nature of the event is
clear, the second question becomes whether the defendant intended to
disrupt that event or, stated otherwise, whether the defendant was aware
that his or her conduct was inconsistent with the customs of the assembly
and whether he or she thereby intended his or her conduct to disrupt the
assembly significantly. Dempsey v. People, 117 P.3d 800 (Colo. 2005).

[DaJudge]

18-9-117. Unlawful conduct on public property. (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=1da268e1.69200c34.0.0&q=%5BGroup%20%2718-9-117%27%5D)

Statute text

(1) It is unlawful for any person to enter or remain in any public building or
on any public property or to conduct himself or herself in or on the same in
violation of any order, rule, or regulation concerning any matter prescribed
in this subsection (1), limiting or prohibiting the use or activities or conduct
in such public building or on such public property, issued by any officer or
agency having the power of control, management, or supervision of the
building or property. In addition to any authority granted by any other law,
each such officer or agency may adopt such orders, rules, or regulations as
are reasonably necessary for the administration, protection, and
maintenance of such public buildings and property, specifically, orders,
rules, and regulations upon the following matters:

(a) Preservation of property, vegetation, wildlife, signs, markers, statues,
buildings and grounds, and other structures, and any object of scientific,
historical, or scenic interest;

(b) Restriction or limitation of the use of such public buildings or property as
to time, manner, or permitted activities;

(c) Prohibition of activities or conduct within public buildings or on public
property which may be reasonably expected to substantially interfere with
the use and enjoyment of such places by others or which may constitute a
general nuisance or which may interfere with, impair, or disrupt a funeral or
funeral procession;

(d) Necessary sanitation, health, and safety measures, consistent with
section 25-13-113 (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=25-13-113&sid=1da268e1.69200c34.0.0#JD_25-13-113), C.R.S.;

(e) Camping and picnicking, public meetings and assemblages, and other
individual or group usages, including the place, time, and manner in which
such activities may be permitted;

(f) Use of all vehicles as to place, time, and manner of use;

(g) Control and limitation of fires, including but not limited to the prohibition,
restriction, or ban on fires or other regulation of fires to avert the start of
or lessen the likelihood of wildfire, and the designation of places where fires
are permitted, restricted, prohibited, or banned.

(2) No conviction may be obtained under this section unless notice of such
limitations or prohibitions is prominently posted at all public entrances to
such building or property or unless such notice is actually first given the
person by the officer or agency, including any agent thereof, or by any law
enforcement officer having jurisdiction or authority to enforce this section.

(3) (a) Except as otherwise provided in paragraphs (b) and (c) of this
subsection (3), any person who violates subsection (1) of this section is
guilty of a class 3 misdemeanor.

(b) Any person who violates any order, rule, or regulation adopted pursuant
to paragraph (g) of subsection (1) of this section is guilty of a class 2
misdemeanor and shall be assessed a fine of not less than two hundred fifty
dollars and not greater than one thousand dollars. The fine imposed by this
paragraph (b) shall be mandatory and not subject to suspension. Nothing in
this paragraph (b) shall be construed to limit the court's discretion in
exercising other available sentencing alternatives in addition to the
mandatory fine.

(c) Any person who violates any order, rule, or regulation adopted pursuant
to paragraph (c) of subsection (1) of this section concerning funerals or
funeral processions is guilty of a class 2 misdemeanor.

18-9-125. Interference with a funeral.

Statute text

(1) A person commits interference with a funeral if he or she, knowing
a funeral is being conducted:

(a) Refuses to leave any private property within one hundred feet of the
funeral site upon the request of the owner of the private property

or the owner's agent; or

(b) Refuses to leave any public property within one hundred feet of
the funeral site upon the request of a public official with authority
over the property or upon the request of a peace officer, and the
public official or peace officer making the request has reasonable
grounds to believe the person has violated a rule or regulation
applicable to that property or a statute or local ordinance.

(2) Interference with a funeral is a class 2 misdemeanor. The
minimum fine prescribed by section 18-1.3-501 (http://198.187.128.12/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=18-1.3-501&sid=1da268e1.69200c34.0.0#JD_18-13-501) (1) for the offense
shall be mandatory and may not be suspended in whole or in part.

(3) Each violation of subsection (1) of this section shall constitute a
separate offense for which an offender may be separately convicted
and sentenced.

(4) Any person who violates any provision of this section may also be
proceeded against for violation of any other provision of law.

History

Source: L. 2006: Entire section added, p. 1199, ? 7, effective May 26.

[Budman]

They are approaching the law wrong. They should write the law such that those picketing a military funeral give up thier rights that protect them from physical attack :D

X2

[BeastXJ]

X3

[ZappBranigan]

Judge: Well and good but it doesn't seem to have prevented these dirtbags from picketing military funerals in CO so I would question the effectiveness of the law. They picketed a funeral at the big church at Colorado and Hampden back in 2007 or so - I remember driving by in my car and I saw the picketers (and a phalanx of Patriot Guard Riders) at the church. Apparently it was a military funeral. And I don't recall that anybody was prosecuted under the laws you cited above.

As Shakespeare would say, Aye, theres the rub: If you write a law that would actually prevent this kind of picketing, it will be unconstitutional. If you write a law that is constitutional, then it won't prevent the very thing you're trying to prevent.

[DaJudge]

Judge: Well and good but it doesn't seem to have prevented these dirtbags from picketing military funerals in CO so I would question the effectiveness of the law. They picketed a funeral at the big church at Colorado and Hampden back in 2007 or so - I remember driving by in my car and I saw the picketers (and a phalanx of Patriot Guard Riders) at the church. Apparently it was a military funeral. And I don't recall that anybody was prosecuted under the laws you cited above.

As Shakespeare would say, Aye, theres the rub: If you write a law that would actually prevent this kind of picketing, it will be unconstitutional. If you write a law that is constitutional, then it won't prevent the very thing you're trying to prevent.
I just went back and re-read the thread. I think we are in agreement.
There is no constitutional way to prevent such picketing, but time, place,
and manner restrictions can be enacted. The Kansas statute that was
struck down did NOT purport to prevent picketing, only to regulate it as
Colorado does. If the picketers you saw did not violate the statutes I
cited then they were entitled to exercise their right to broadcast their odious message.

From the KC Star article in the OP: "The law would have banned protests
within 150 feet of a funeral for one hour before and two hours after a
service. Violators would face fines and even jail time."

[ZappBranigan]

I just went back and re-read the thread. I think we are in agreement.
There is no constitutional way to prevent such picketing, but time, place,
and manner restrictions can be enacted. The Kansas statute that was
struck down did NOT purport to prevent picketing, only to regulate it as
Colorado does. If the picketers you saw did not violate the statutes I
cited then they were entitled to exercise their right to broadcast their odious message.

From the KC Star article in the OP: "The law would have banned protests
within 150 feet of a funeral for one hour before and two hours after a
service. Violators would face fines and even jail time."

I also think that, strategically, getting laws enacted may not be the best way to deal with these idiots. After all, attention is what they're after and the attention they get by having state legislatures pass laws aimed directly at them just feeds their enormous egos.

I think the PGR have a good idea. Keep the protesters physically separated (using existing laws against creating a disturbance, etc) and then have a group like the PGR shield the funeral goers from these obnoxious idiots. Marginalize them long enough and eventually they may go away.

Not as satisfying as a beat-down, definitely, but a more practical solution, I think.