The state's high court Tuesday struck down a law restricting funeral picketing, but House members acted hours later to craft a new law to help force the issue this session.
Kansas Supreme Court justices sidestepped the heart of the law enacted last year, which prohibited picketing within 150 feet of a funeral, and instead said the judicial trigger provision of the statute was unconstitutional.
The legislation was written so as not to take effect until a state or federal court ruled it constitutional, but the court said the trigger violated the separation of powers.
"A court issuing such an opinion would usurp the Legislature's duty to make a preliminary judgment on the constitutionality of inoperative legislative provisions," Justice Marla Luckert wrote for the court.
The court left alone a provision that allows family members to sue if they feel protesters defamed their dead relatives.
The ruling was another setback for legislators who have attempted for years to rein in the activities of Pastor Fred W. Phelps Sr. and Westboro Baptist Church in Topeka. Members have become infamous around the world for protesting at the funerals of fallen U.S. troops, saying their deaths are God's punishment of the country's acceptance of homosexuality.
Lawmakers included the trigger out of fear Phelps would file a lawsuit, get the law struck down and collect damages from the state. On Tuesday, the court said no to the trigger.
But Rep. Raj Goyle, D-Wichita, said he is confident a new bill can still work because the court said nothing about the buffer zone at the core of the law.
"The court's ruling was strictly about a legal technicality, not the restrictions on protesters which we believe are constitutional," Goyle said.
Goyle and Rep. Jeff Whitham, R-Garden City, introduced essentially the same bill stripped of the trigger provision into the House Federal and State Affairs Committee on Tuesday afternoon.
The panel's chairman said he would debate and vote on the bill the same day, an unusual move for most legislation, and Goyle said he had already talked with the office of House Speaker Melvin Neufeld, R-Ingalls, about the bill, as well.
"We're moving forward with this," Goyle said.
The new bill includes a provision to allow people to sue for emotional distress caused by the picketing of a funeral. The father of a killed Marine successfully sued Westboro Baptist last year in a Maryland court, though that decision is on appeal.
Rep. Joe Patton, R-Topeka, last year introduced a bill that would have allowed action similar to that taken in Maryland. He said he was happy to see that language included in the bill introduced Tuesday.
He also said like it or not, the court's ruling was correct.
"Public policy has to be made in the Legislature, not in the courts," said Patton, a lawyer. "The judicial trigger violates the way we approach public policy. The court is not in the business of giving advisory opinions."
Shirley Phelps-Roper, a daughter of Fred Phelps and a church attorney, said she welcomed the decision, calling it "lovely."
"(The court) didn't need to invite the Legislature to take another run at what is a lost cause," she said. "Nothing they put their hands on impacts us, so why keep messing with it?"
Senate Majority Leader Derek Schmidt said the Senate would expedite the bill's process as this year's session nears its close.
James Carlson can be reached at (785) 233-7470 or email@example.com.
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