                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAY 8 1997
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    FRED W. PHELPS, SR.

               Plaintiff-Appellant,

         and                                           No. 96-3263
                                                 (D.C. No. 93-4042-KHV)
    EDWARD F. ENGEL,                                    (D. Kan.)

               Plaintiff,

    v.

    JOAN HAMILTON, in her official
    capacity as District Attorney,

               Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       Honorable Robin J. Cauthron, District Judge, United States District Court
for the Western District of Oklahoma, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff-appellant Fred W. Phelps, Sr., appeals the dismissal of his civil

rights action arising out of six allegedly unlawful criminal defamation

prosecutions filed against him. The district court dismissed the action on the

ground that plaintiff no longer had standing to pursue it. We affirm the dismissal,

but on the ground that the issues raised in this action are now moot.

      Plaintiff is a Kansas resident who has been active since at least 1991 in a

controversial campaign against homosexuality. During the course of this

campaign, plaintiff allegedly made statements which formed the basis of six

criminal defamation prosecutions filed against him in 1993. After the first two

prosecutions were filed, plaintiff commenced this civil rights action 1 against

defendant-appellee Joan Hamilton, in her official capacity as district attorney for

Kansas’ Third Judicial District, to invalidate Kansas’ criminal defamation statute

as facially overbroad, as well as to enjoin the prosecutions against him on the



1
       Plaintiff Phelps brought this action with plaintiff Edward F. Engel, who had
been indicted in 1991 for criminal defamation. Those charges were dropped
before the institution of this action and no additional charges had been filed.
Plaintiff Engel is not a party to this appeal.

                                         -2-
ground that the statute was unconstitutionally applied to him 2 and overbroad on its

face.

        On cross motions for summary judgment, the district court ruled (1) that it

need not abstain from intervening in the pending state court prosecutions, and (2)

that the criminal defamation statute was unconstitutionally overbroad in that it did

not require actual malice. See Phelps v. Hamilton, 828 F. Supp. 831, 845 & 850

(D. Kan. 1993), rev’d, 59 F.3d 1058 (10th Cir. 1995). The district court

subsequently issued first a preliminary and then a permanent injunction,

invalidating the statute and enjoining the prosecutions. Defendant appealed.

        On appeal, we concluded that the Kansas courts would imply an actual

malice standard and thus reversed the grant of summary judgment to plaintiff on

his facial validity claim. Phelps v. Hamilton, 59 F.3d 1058, 1062 n.3 & 1073

(10th Cir. 1995). 3 With respect to his “as applied” challenge, we concluded that

the district court could not enjoin the pending prosecutions unless plaintiff

actually proved (rather than simply raised as an issue of fact) “that [they] had

2
       Plaintiff alleges in his complaint that “[t]he statute is unconstitutionally
broad as applied because the statute is being applied as to these plaintiffs in a way
which threatens to punish them for protected speech, and plaintiffs are being
selectively prosecuted or threatened with prosecution by a vindictive prosecutor
for religious exercise and speech on matters of vital public concern, public
officials, public issues and public figures.” I Appellant’s App. at 26.
3
      While the first appeal was pending, the Kansas Legislature amended the
criminal defamation statute specifically to require “actual malice.”
See Kan. Stat. Ann. § 21-4004 (1995).

                                         -3-
been instituted in bad faith or to harass.” Id. at 1061, 1063 & 1067. We,

therefore, remanded plaintiff’s “as applied” claim to the district court for further

proceedings. Id. at 1061, 1073.

      On remand, the district court learned that, after it declared the statute

unconstitutional, all of the criminal defamation charges had been dismissed, and

that the applicable limitation periods had run, precluding further prosecution

based on the events giving rise to those charges. See I Appellant’s App. at 100.

Identifying the “only remaining issue” as “the threat of future unlawful

prosecution,” the district court granted defendant’s motion to dismiss, concluding

that plaintiff lacked standing to pursue the action because (1) he failed to allege

an injury “sufficient to confer jurisdiction to seek prospective relief,” id. at 103,

and (2) “the alleged injury[, even if sufficient,] cannot be redressed by the Court,”

id. at 104. Plaintiff appeals the dismissal.

      “Mootness is a threshold issue because the existence of a live case or

controversy is a constitutional prerequisite to federal court jurisdiction.”

McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).

“Because mootness is a matter of jurisdiction, a court may raise the issue sua

sponte.” Id. “The touchstone of the mootness inquiry is whether the controversy

continues to ‘touch[ ] the legal relations of parties having adverse legal interests’

in the outcome of the case.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348


                                          -4-
(10th Cir. 1994) (quoting DeFunis v. Odegaard, 416 U.S. 312, 317 (1974) (per

curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937))).

Put another way, “a case becomes moot when the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.” Central

Wyo. Law Assocs. v. Denhardt, 60 F.3d 684, 687 (10th Cir. 1995).

      Plaintiff brought this lawsuit in 1993 to invalidate Kansas’ then-existing

criminal defamation statute as facially overbroad and to enjoin the prosecutions

against him on the ground that the statute was unconstitutionally applied to him

and overbroad on its face. As indicated above, the statute was ultimately found to

be valid as written, but, by that time, had been amended anyway to correct

explicitly the potential constitutional deficiency. In addition, all of the

prosecutions under the original statute have been dismissed and, due to the

expiration of the applicable limitation periods, cannot be refiled. Accordingly,

the issues raised in this lawsuit (the legality of the original statute, the prospect of

future prosecution under the then-suspect statute, and the legality of the then-

pending prosecutions) are now moot. 4




4
       The dismissal of the challenged prosecutions and the running of the
applicable limitation periods also preclude the application of the “capable of
repetition, yet evading review” exception to the mootness doctrine, since it is
clear that this particular controversy will not recur.

                                           -5-
      Plaintiff attempts to avoid the obvious justiciability problem by focusing in

his brief on the prospect of future bad faith prosecutions under the amended and

now admittedly constitutional criminal defamation statute. Plaintiff is correct in

the thrust of his argument, presented in the context of standing but applicable also

in mootness analysis, that the prospect of future harm as a result of challenged

conduct can alone (if sufficiently likely) render a dispute justiciable. See, e.g,

Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir. 1991) (to avoid

mootness, party seeking equitable relief who has been exposed in the past to

allegedly illegal conduct must demonstrate “‘a good chance of being likewise

injured in the future.’”) (quoting Facio v. Jones, 929 F.2d 541, 543 (10th Cir.

1991)(a standing case)). The problem for plaintiff is that the challenged conduct

in this case was the allegedly unlawful prosecution of six specific cases, which

have now been dismissed and cannot be refiled. Even if those prosecutions were

brought in bad faith, the prospect of future harm from the challenged conduct is

nonexistent.

      It is true that the pretrial order, which supersedes the complaint as the basis

for disposition in this case, see Franklin v. United States, 992 F.2d 1492, 1497

(10th Cir. 1993); see also Fed. R. Civ. P. 16(e) & I Appellant’s App. at 97,

alleges the threat of future bad faith prosecutions “under the Kansas criminal

defamation statute,” which, at this juncture, can only mean the amended statute.


                                          -6-
The record is clear, however, that these allegations did not expand the scope of

plaintiff’s original action. Just eight days after entry of the pretrial order, the

district court denied a motion by plaintiff to amend his complaint, declaring that

“the pretrial order assumes that [plaintiff’s] tendered amendment has been

rejected.” Docketing Statement, attachment 1 at 4. Although the record on

appeal does not include a copy of the “tendered amendment,” the district court’s

order of denial makes clear its substance:

             The Court notes that the proposed amendments recharacterize
      the nature of plaintiff’s claim as an attack on defendant’s
      prosecutorial policy. Plaintiff does not now challenge past
      prosecutions, but seeks to use past prosecutions as evidence that
      defendant is predisposed to prosecute him unfairly. This posture
      completely recharacterizes, however, the essence of plaintiff’s case.
      This recharacterization also raises the difficult issue of fashioning
      appropriate relief for plaintiff should he eventually prevail.

              The Court does not necessarily conclude that plaintiff’s
      proposed amendment is futile because his claims are legally
      insufficient as a matter of law [thus not embracing defendant’s
      futility arguments based on standing and ripeness], although that
      conclusion may indeed be the correct one. The point is that plaintiff
      has taken off in a totally new direction. The purported amendments
      go beyond “supplementation”; they lead us in an entirely new
      direction which, as the Court notes below, is substantially prejudicial
      to the opposing party.

      ....

            To circumvent the arguable difficulties with standing and the
      absence of a case or controversy discussed above, plaintiff’s
      amended complaint recharacterizes the nature of the claim as a
      challenge against defendant’s prosecutorial policy. This revision
      inexplicably changes the fundamental nature of the case. . . .

                                           -7-
      ....

      . . . Plaintiff may challenge future prosecutions under the 1995
      criminal defamation statute by filing a new complaint, but not by
      reworking the original complaint in this case.

Docketing Statement, attachment 1 at 3-4, 6, 7. See also Docketing Statement at

4 (where plaintiff states that he “moved to amend to add a claim for bad faith

prosecutorial policy (emphasis added)). If plaintiff intended to challenge on

appeal the district court’s denial of his motion to amend, see id. at 4 & 5, he has

since abandoned the issue, see Reazin v. Blue Cross & Blue Shield of Kan., Inc.,

899 F.2d 951, 979 n.43 (10th Cir. 1990) (issue raised in docketing statement but

not briefed is abandoned).

      Plaintiff has moved to supplement the record on appeal with three

documents indicating that new criminal defamation charges have been filed

against him, this time obviously under the amended criminal defamation statute.

For the reasons discussed above, we deny the motion to supplement because the

tendered documents are not relevant to the issue before us, which is not simply




the existence of any controversy between plaintiff and defendant but the

continued viability of the controversy presented in this action.




                                          -8-
     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                  Entered for the Court



                                                  Robin J. Cauthron
                                                  District Judge




                                       -9-
