From kevyn@KSUVM.KSU.EDUThu Jun 29 17:57:03 1995 Date: Thu, 29 Jun 1995 17:53:16 -0500 (CDT) From: Kevyn Jacobs To: "Kansas Queer News [KQN]" Subject: TOPEKA C-J: D.A. Hopes to have Phelps-filed suit dismissed FROM THE TOPEKA CAPITAL-JOURNAL JUNE 29, 1995 ================================== D.A. HOPES TO HAVE WESTBORO LAWSUIT DISMISSED By STEVE FRY The Capital-Journal A federal judge will hear testimony today to decide whether to dismiss a lawsuit filed by the Westboro Baptist Church against Shawnee County District Attorney Joan Hamilton and the county's district judges. The evidentiary hearing will be conducted by U.S. District Judge Timothy D. Leonard, Oklahoma City, in federal court in Topeka. Leonard could issue a ruling from the bench after the hearing or issue a written decision later. Possible witnesses to be called include Hamilton and Joel Meinecke, first assistant district attorney. Westboro Baptist Church is asking Leonard to rule that Hamilton's prosecutorial policies and nine cases filed in March against six church members were unconstitutional because they were the product of bad faith and selective prosecution. The case was filed March 29 by Elizabeth Phelps and Margie J. Phelps, attorneys for the church. The lawsuit is the third federal case filed by the church, which is known for its strident anti-homosexual picketing and faxes. Deanne Watts Hay, an attorney defending Hamilton, is seeking dismissal of the church lawsuit, contending the federal court lacks jurisdiction. Forty church members, including 15 minors who picket, are listed as plaintiffs. Hamilton and all Shawnee County district judges are listed as defendants. The church lawsuit seeks a court order freezing prosecution of misdemeanor trials of six church members, a court order blocking enforcement of bond conditions on the six, and a court order dealing with Hamilton's prosecution policies against church members. The six are to be tried in Emporia during a three-week period starting July 17. Hay said the federal court can't overrule state court decisions and can't sit as an appellate court in this case. Hay also contends: * The lawsuit against Hamilton is barred by the 11th Amendment, which says the federal judicial power can't extend to any lawsuit commenced or prosecuted against one of the states by citizens of another state. * Church members failed to state a claim. * The federal court should abstain from involvement in this case based on the theory the federal branch can't interfere with the state branch of government. The exception to the doctrine is when prosecutions are done in bad faith, the court filing said. Hay also said allegations of bad faith and selective prosecution by Hamilton have already been dealt with in Shawnee County District Court in 1993, and church members "lost and are not entitled to another bite at the apple here." The nine cases are linked to street scuffles or name-calling incidents in 1994 or 1995, all at picketing sites.