                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                 Elisabeth A. Shumaker
Clerk                                                                                  Chief Deputy Clerk

                                               August 15, 1997


        TO:      All recipients of the captioned opinion

        RE:      95-3338, Phelps v. Hamilton
                 August 12, 1997


                 Please be advised of the following correction to the captioned decision:

               On page two of the caption page of the opinion, case number 95-3338 is shown as
        an appeal from the United States District Court for the District of Colorado. The correct
        lower court is the United States District Court for the District of Kansas.

                 Please make the appropriate correction.

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Susie Tidwell
                                                           Deputy Clerk
                                                               F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                                    PUBLISH
                                                                   AUG 12 1997
                    UNITED STATES COURT OF APPEALS
                                                            PATRICK FISHER
                                                                      Clerk
                                TENTH CIRCUIT


FRED W. PHELPS, SR.; JONATHAN B. PHELPS;         )
KARL D. HOCKENBARGER; CHARLES F.                 )
HOCKENBARGER; BENJAMIN C. PHELPS;                )
CHARLES WILLIAM HOCKENBARGER;                    )
MARGIE M. PHELPS; MARY HOCKENBARGER;             )
FRED W. PHELPS, JR.; BETTY J. PHELPS;            )
MARGIE J. PHELPS; BRENT D. ROPER;                )
SHIRLEY L. PHELPS-ROPER; PAULETTE K.             )
PHELPS; CHRIS R. DAVIS; REBEKAH A.               )
PHELPS-DAVIS; ELIZABETH M. PHELPS;               )
TIMOTHY B. PHELPS; LEE A. PHELPS;                )
RACHEL I. PHELPS; ABIGAIL R. PHELPS;             )
DEBORAH KAY HOCKENBARGER,                        )
JENNIFER HOCKENBARGER, THERESA A.                )   No. 95-3338
DAVIS, and GEORGE H. STUTZMAN, JR.,              )
additional adult members/picketers of Westboro   )
Baptist Church; SHARON M. PHELPS, SARA L.        )
PHELPS, ELIZABETH JEAN PHELPS, by and            )
through their mother Betty J. Phelps, MEGAN      )
PHELPS-ROPER, REBEKAH PHELPS-ROPER,              )
ISAIAH PHELPS- ROPER, SAMUEL PHELPS-             )
ROPER, JOSHUA PHELPS-ROPER, by and               )
through their mother Shirley L. Phelps-Roper,    )
JACOB Z. PHELPS, by and through his mother       )
Margie J. Phelps, JAMES HOCKENBARGER,            )
KATHERINE HOCKENBARGER, by and through           )
their mother Deborah Kay Hockenbarger, JAEL M.   )
PHELPS, JOSHUA M. PHELPS, JACOB M.               )
PHELPS, JOSEPH M. PHELPS, by and through         )
through their mother Paulette K. Phelps, minor   )
members and/or picketers of Westboro Baptist     )
Church,                                          )
                                                 )
                 Plaintiffs-Appellants,          )
v.                                               )
                                                          )
JOAN HAMILTON, in her official capacity                   )
as District Attorney; THE STATE OF KANSAS,                )
Third Judicial District, by all individual judges         )
thereof, full time, part time, assigned or                )
otherwise, in their official capacities,                  )
                                                          )
                     Defendants-Appellees.                )



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF KANSAS
                          (D.C. No. 95-4045-TL)


Elizabeth M. Phelps, Phelps-Chartered, Topeka, Kansas, and Margie J. Phelps, Topeka,
Kansas, for Plaintiffs-Appellants.

Carla J. Stovall, Attorney General, and Kevin D. Case, Office of the Attorney General,
Topeka, Kansas, and Deanne Watts Hay, Sloan, Listrom, Eisenbarth, Sloan & Glassman,
Topeka, Kansas, for Defendants-Appellees.


Before BRORBY, HENRY, and MURPHY, Circuit Judges.*


HENRY, Circuit Judge



       In this appeal, plaintiffs-appellants seek review of the district court’s dismissal of

their 42 U.S.C. § 1983 action seeking declaratory and injunctive relief against defendants-


       *
               After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

                                              2
appellees, Shawnee County District Attorney Joan Hamilton and the State of Kansas,

Third Judicial District. The plaintiffs’ suit arises from nine state criminal prosecutions

commenced against six of the plaintiffs in March 1995. The district court dismissed the

underlying § 1983 action on Younger abstention and Eleventh Amendment immunity

grounds. Prior to reviewing the substantive holdings of the district court, we address the

threshold question of whether we have appellate jurisdiction to consider the plaintiffs’

appeal. For the reasons set forth below, we hold that we have jurisdiction over this

appeal and affirm the judgment of the district court.



                                     BACKGROUND



       The forty plaintiffs in this case are members of the Westboro Baptist Church in

Topeka, Kansas who are involved in anti-homosexual protests and picketing in Shawnee

County, Kansas and other locations within and outside the State of Kansas. The plaintiffs

initiated this 42 U.S.C. § 1983 suit seeking injunctive and declaratory relief against

defendants with regard to nine state criminal prosecutions filed against six of the

plaintiffs arising from their anti-homosexual picketing.1 Those six plaintiffs--Benjamin


       1
             The underlying state court prosecutions which are the subject of this appeal are as
follows:
       Benjamin C. Phelps
             Case 95-CR-01022: Battery
       Fred W. Phelps, Sr.
             Case 95-CR-01023: Battery/Assault

                                               3
C. Phelps, Fred W. Phelps, Sr., Charles W. Hockenbarger, Jonathan B. Phelps, Karl D.

Hockenbarger, and Charles F. Hockenbarger--seek to have the court declare that the nine

criminal prosecutions and defendant Hamilton’s prosecutorial policies are

unconstitutional because they are based on “bad faith motive.” In addition, the six

plaintiffs, along with thirty-four members of the Westboro Baptist Church and/or

picketers who have not been prosecuted, seek to enjoin any future prosecutions which

“are unconstitutional and based upon a bad faith motive” against any of them.

       The district court addressed plaintiffs’ claims in three orders relevant to this

appeal. First, on June 28, 1995, the district court granted the State’s motion to dismiss the

action against it on Eleventh Amendment immunity grounds and denied the plaintiffs’

motion to amend to include the name of the state court judge in charge of the criminal

proceedings. Second, on July 14, 1995, the district court granted defendant Hamilton’s

motion to dismiss based on the abstention doctrine announced in Younger v. Harris, 401

U.S. 37 (1971), and denied the plaintiffs’ motion for a preliminary injunction. The




              Case 95-CR-01027: Disorderly Conduct (two counts)
       Charles W. Hockenbarger
              Case 95-CR-01024: Battery/Criminal Restraint
       Jonathan B. Phelps
              Case 95-CR-01025: Battery/Criminal Restraint
              Case 95-CR-01030: Disorderly Conduct
       Karl D. Hockenbarger
              Case 95-CR-01026: Battery/Assault
              Case 95-CR-01029: Battery/Criminal Restraint
       Charles F. Hockenbarger
              Case 95-CR-01028: Battery

                                              4
district court entered its judgment dismissing the action on July 17, 1995. Finally, on

August 31, 1995, the district court denied the plaintiffs’ post-judgment motions for relief,

entering judgment on that order on September 11, 1995. The plaintiffs then filed their

notice of appeal on October 10, 1995.

       In this appeal, the plaintiffs raise three principal arguments: (1) that the district

court erred in abstaining under the Younger doctrine; (2) that the district court erred in

dismissing this action without conducting a hearing on the plaintiffs’ motion for a

preliminary injunction; and (3) that the district court erred in dismissing the State of

Kansas, Third Judicial District as a defendant without permitting the plaintiffs the

opportunity to amend their complaint to name the state court judge to whom the criminal

cases had been assigned.

       Prior to addressing the plaintiffs’ arguments, we consider sua sponte the

jurisdictional question of whether the notice of appeal was timely filed under Fed. R.

App. P. 4(a)(4) where it was filed more than thirty days after the entry of the district

court’s August 31 order denying the plaintiffs’ post-judgment motions.2


       2
               Defendant Hamilton has filed a “Motion for Leave to Supplement the
Record in Regard to Mootness and Jurisdictional Issues.” We grant her motion and
supplement the record to reflect the current status of the nine underlying state court
criminal proceedings. This supplemental information demonstrates that at least three of
the six plaintiffs charged in state court--Charles W. Hockenbarger, Karl D. Hockenbarger,
and Charles F. Hockenbarger--no longer have any criminal charges pending against them
in state court. While we have serious reservations about whether these three plaintiffs as
well as the thirty-four uncharged plaintiffs in this case can demonstrate constitutional
standing to seek prospective equitable relief, see Phelps v. Hamilton, No. 95-3251 at 7-

                                               5
                                       DISCUSSION



                    I. Timeliness of the Plaintiffs’ Notice of Appeal



       The first question we must address is whether the thirty day period for filing a

notice of appeal under Fed. R. App. P. 4(a) ran from August 31, 1995, when the district

court entered an “order” denying the plaintiffs’ post-judgment motion, or from September

11, 1995, when the “judgment” on that order was entered.

       Fed. R. App. P. 4(a)(1) provides that an appeal in a civil case “must be filed with

the clerk of the district court within 30 days after the date of entry of the judgment or

order appealed from.” Generally, “a party need not file a notice of appeal until a separate

judgment has been filed and entered” by the district court. Bankers Trust Co. v. Mallis,

435 U.S. 381, 385 (1978) (citing Fed. R. Civ. P. 58, which provides that “[e]very

judgment shall be set forth on a separate document”). However, a party may extend the

time to appeal by filing certain post-judgment motions specified in Fed. R. App. P.

4(a)(4), including a motion for a new trial under Fed. R. Civ. P. 59. See Fed. R. App. P.

4(a)(4). If a party timely files one of the specified post-judgment motions, “the time for



11, we note that the three remaining plaintiffs--Fred W. Phelps, Benjamin C. Phelps, and
Jonathan B. Phelps--are awaiting appeal or retrial and therefore can demonstrate a present
“case or controversy” under Article III of the United States Constitution. Because at least
three of the plaintiffs do have standing, we have jurisdiction over this appeal and proceed
to analyze the plaintiffs’ common arguments.

                                              6
appeal for all parties runs from the entry of the order disposing of the last such motion

outstanding.” Fed. R. Civ. P. 4(a)(4) (emphasis added).

       In the present case, after the district court granted both defendants’ motions to

dismiss, the plaintiffs filed a “Motion for New Trial, Amendment of Judgment, Relief

from Judgment, to Alter, Amend or Modify Judgment, to Set Aside Judgment and/or for

Reconsideration and Renewed Motion for Stay of State Court Criminal Proceedings.”

See Aplt’s App. vol. V, at 1232 (Motion dated July 25, 1995).3 After considering the

plaintiffs’ arguments under both motions, the district court on August 31, 1995 denied the

plaintiffs’ motions in a four-page “Order”. See id. at 1257-60 (Dist. Ct. Order dated Aug.

31, 1995). Shortly thereafter, on September 11, 1995, the district court entered a separate

“Judgment” reaffirming its August 31 order.

       While this court has not directly addressed the question of whether the denial of a

post-judgment motion covered under Rule 4(a)(4) abrogates Fed. R. Civ. P. 58's separate

judgment requirement, we need not do so here because the district court in this case

entered a separate judgment after its August 31 order. Because the plaintiffs clearly

relied on this later-issued judgment to begin the tolling of the time in which to appeal, we

hold in this case that the thirty-day time period began to run from September 11. See



       3
              The district court construed the plaintiffs’ motion as two separate motions--
a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e), because the
motion was filed within ten days of the court’s July 17, 1995 judgment, and a renewed
motion to stay the state court criminal proceedings.

                                              7
Kline v. Department of Health & Human Servs., 927 F.2d 522, 524 (10th Cir. 1991)

(“[W]e are reluctant to hold that because [an order which complies with Rule 58] has

been entered, the parties may not appeal from a later separate order which clearly meets

the requirements of Rule 58.”). The plaintiffs filed their notice of appeal on October 10,

1995--thereby complying with the thirty day period under Fed. R. App. P. 4(a)(1).

Accordingly, we accept jurisdiction over this appeal.



                                  II. Younger Abstention



       In response to defendant Hamilton’s motion to dismiss the plaintiffs’ claim for

lack of subject matter jurisdiction, the district court ruled that it would abstain from

exercising jurisdiction under Younger v. Harris, 401 U.S. 37 (1971), because the

plaintiffs failed to establish that this case fell within the bad faith and harassment

exception to that abstention doctrine. The plaintiffs appeal this ruling, claiming that the

district court erred because their complaint alleged prosecutorial bad faith and that the

district court improperly placed the burden of proof on the plaintiffs to defeat defendant

Hamilton’s motion to dismiss.

       We review de novo the district court’s decision to abstain from exercising

jurisdiction under Younger. Phelps v. Hamilton, 59 F.3d 1058, 1063 (10th Cir. 1995)

[hereinafter Phelps I] (citing Seneca-Cayuga Tribe v. Oklahoma ex rel. Thompson, 874


                                               8
F.2d 709, 711 (10th Cir. 1989)). In Younger, the Supreme Court held that federal courts,

except in the most exceptional circumstances, must dismiss suits for declaratory or

injunctive relief against pending state criminal proceedings. 401 U.S. at 43, 53-54. The

Court based this restraint on notions of comity and federalism, which require that federal

courts respect state functions and the independent operation of state legal systems. Id. at

44-45. In Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423

(1982), the Court set out a three-part test for determining whether a federal court should

abstain in favor of a state proceeding. Before a federal court abstains, it must determine

that: (1) the state proceedings are ongoing; (2) the state proceedings implicate important

state interests; and (3) the state proceedings afford an adequate opportunity to present the

federal constitutional challenges. Id. at 432.

       The Court also recognized in Younger and its companion case, Perez v. Ledesma,

401 U.S 82 (1971), that a federal plaintiff may overcome the presumption of abstention

“in cases of proven harassment or prosecutions undertaken by state officials in bad faith

without hope of obtaining a valid conviction and perhaps in other extraordinary

circumstances where irreparable injury can be shown . . . .” Perez, 401 U.S at 85.

According to Younger, the irreparable injury must be “‘both great and immediate.’” 401

U.S. at 46 (quoting Fenner v. Boykin, 271 U.S. 240, 243 (1926)). Moreover, the “threat

to the plaintiff’s federally protected rights” is only irreparable if it “cannot be eliminated

by . . . defense against a single prosecution.” Younger, 401 U.S. at 46. There are three


                                                 9
factors that courts have considered in determining whether a prosecution is commenced in

bad faith or to harass: (1) whether it was frivolous or undertaken with no reasonably

objective hope of success; (2) whether it was motivated by the defendant’s suspect class

or in retaliation for the defendant’s exercise of constitutional rights; and (3) whether it

was conducted in such a way as to constitute harassment and an abuse of prosecutorial

discretion, typically through the unjustified and oppressive use of multiple prosecutions.

See Phelps I, 59 F.3d at 1065.

       According to our decision in Phelps I, on which the district court in this case relies,

it is the plaintiff’s “heavy burden” to overcome the bar of Younger abstention by setting

forth more than mere allegations of bad faith or harassment. Id. at 1066. Once the

plaintiff makes an initial showing of retaliatory animus, then the burden shifts back to the

defendant to rebut the presumption of bad faith by offering “‘“legitimate, articulable,

objective reasons”’” to justify the decision to initiate these prosecutions. Id. (quoting

United States v. P.H.E., Inc., 965 F.2d 848, 860 (10th Cir. 1992) (quoting United States v.

Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991))). In applying this standard, the district

court held that because the plaintiffs failed to carry their burden to demonstrate that the

prosecutions were substantially motivated by bad faith or to harass them, Younger

abstention should apply.

       The plaintiffs first disagree with the district court’s use of the standard articulated

in Phelps I, arguing that they should not have been required to demonstrate bad faith


                                              10
beyond that alleged in their pleadings. However, the Supreme Court has held that once

the complaint is filed in a § 1983 suit, “the principles of Younger v. Harris should apply

with full force.” Hicks v. Miranda, 422 U.S. 332, 349 (1975). As stated in that case:

“Unless we are to trivialize the principles of Younger v. Harris, the federal complaint

should have been dismissed on [defendant’s] motion absent satisfactory proof of those

extraordinary circumstances calling into play one of the limited exceptions to the rule of

Younger v. Harris . . . .” Id. at 350. Under this standard, the district court properly placed

the burden on the plaintiffs to come forth with additional, supplemental evidence

regarding defendant’s alleged bad faith to withstand Younger abstention.4

       The plaintiffs’ second contention is that the district court erred in ruling that the

bad faith exception to the Younger doctrine did not apply in this case. While the

plaintiffs do not dispute the initial application of the Younger doctrine to their claim, they

do contend that the bad faith exception to the Younger doctrine should apply to defeat



       4
               The plaintiffs also argue that the procedural posture of Phelps I is
distinguishable because it was decided on a summary judgment motion, not a motion to
dismiss. However, in the underlying case, the district court held an evidentiary hearing
on the abstention question and both parties were permitted to present evidence on the
abstention question and bad faith exception. As recognized in Brown v. Zavaras, 63 F.3d
967 (10th Cir. 1995), “a court may convert a . . . motion to dismiss into a summary
judgment proceeding in order to consider matters outside of the plaintiff’s complaint.”
Id. at 969. In so doing, the court is required to give the parties notice and allow them the
opportunity to present to the court all material made pertinent to such motion. Id. In this
case, the district court met this requirement by convening the evidentiary hearing and
allowing the parties to present evidence on the bad faith issue. See Aplts’ Br. att. B, at 1
(Dist. Ct. Order dated June 21, 1995).

                                              11
abstention. Specifically, they contend that the evidence demonstrates that: (1) defendant

Hamilton and her husband have frequently communicated personal animosity and

hostility toward the plaintiffs; (2) defendant Hamilton made statements in her campaign

for district attorney that she would prosecute the plaintiffs; and (3) the plaintiffs have

been subjected to a substantial number of prosecutions indicative of retaliatory animus.

       After thoroughly reviewing the record in this case, we agree with the district court

that the plaintiffs failed to carry their burden of demonstrating that the bad faith exception

to the Younger doctrine should apply. In fact, several of the plaintiffs’ arguments are

similar to arguments previously made by one of the plaintiffs and rejected by this court in

Phelps I.

       With regard to the plaintiffs first argument, this court held in Phelps I that

“demonstrating a history of personal animosity between the prosecutor and the [state

court] defendant is not, by itself, sufficient to show that a prosecution was commenced in

bad faith.” 59 F.3d at 1067. As to the second argument, we noted in Phelps I that

statements made by defendant Hamilton in the course of a political campaign related to a

political debate over law enforcement. “To view these statements as indicative of bad

faith or harassment in subsequent prosecutions would intervene into prosecutorial

discretion in case selection and chill political debate during campaigns for prosecutor.”

Id. at 1068. In considering the plaintiffs’ final argument, we note that while defendant

Hamilton has filed 20 cases against members of the Westboro Baptist Church since she


                                              12
has been in office, during that same time she has filed a total of 143 assault cases, 1,649

battery cases, 74 criminal restraint cases, and 84 disorderly conduct cases--including

several against counter-demonstrators. See Aples’ Supp. app. vol. IV, at 1504-1545

(Count of Specific Cases filed from Jan. 1, 1993-June 21, 1995). In view of the nature of

the plaintiffs’ protests and activities, we cannot say that this relatively small number of

prosecutions rises to the oppressive level necessary to trigger the bad faith exception to

the Younger doctrine. In conclusion, we hold that the plaintiffs have not demonstrated

the existence of extraordinary circumstances that would render a state court unable to

provide them a full and fair hearing on their federal claims.



                III. The Plaintiffs’ Motion for a Preliminary Injunction



       After the district court dismissed the plaintiffs’ suit against defendant Hamilton on

abstention grounds, the court also denied the plaintiffs’ motion for a preliminary

injunction in which they sought enjoin the underlying state court prosecutions. The

plaintiffs now argue that the district court erred in denying them a full hearing on their

request for a preliminary injunction.

       We review a district court’s denial of a preliminary injunction for an abuse of

discretion. Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army,

111 F.3d 1485, 1489 (10th Cir. 1997). “An abuse of discretion occurs only when the trial


                                              13
court bases its decision on an erroneous conclusion of law or where there is no rational

basis in the evidence for the ruling.” In re Coordinated Pretrial Proceedings in Petroleum

Prod. Antitrust Litig., 669 F.2d 620, 623 (10th Cir. 1982).

       The question of whether to preliminarily enjoin an ongoing state court proceeding

is precluded after Younger abstention is applied. As pointed out by the First Circuit in

Brooks v. New Hampshire Supreme Court, 80 F.3d 633 (1st Cir. 1996): “When Younger

applies, the district court must refrain from reaching the merits of the plaintiff’s claims

and, thus, there is no real possibility--let alone a likelihood--that the plaintiff will succeed

in the action. A fortiori, there can be no abuse of discretion in refusing to grant

preliminary injunctive relief.” Id. at 637. It would be illogical for a federal court to

preliminarily enjoin a state court proceeding when it is required to abstain from reviewing

the state court proceeding altogether. Thus, the district court correctly refrained from

conducting a hearing on the plaintiffs’ motion for a preliminary injunction.



                 IV. The Plaintiffs’ Motion to Amend their Complaint



       The plaintiffs’ final argument is that the district court erred in dismissing the State

of Kansas as a defendant without allowing the plaintiffs to amend their complaint to

substitute the name of the state judge hearing the underlying state cases. Because we




                                               14
conclude that our abstention holding moots this issue, we do not proceed to the merits of

the plaintiffs’ argument.

       The constitutional mootness doctrine is grounded in Article III’s requirement that

federal courts only decide “actual, ongoing cases or controversies.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990). “Generally an appeal should be dismissed as

moot when events occur that prevent the appellate court from granting any effective

relief.” Thournir v. Buchanan, 710 F.2d 1461, 1463 (10th Cir. 1983). The central

question in determining whether a case has become moot is whether “the issues presented

are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”

Powell v. McCormack, 395 U.S. 486, 496 (1969).

       In the present case, the Younger abstention doctrine requires that this court and the

district court abstain from exercising jurisdiction over the plaintiffs’ § 1983 suit. Because

neither we nor the district court has jurisdiction to hear the plaintiffs’ case, we cannot

grant the plaintiffs effective relief with regard to their challenge to the district court’s

ruling on their motion to amend. This inability to grant effective relief renders this issue

moot. See Pursifull v. Eakin, 814 F.2d 1501, 1506 (10th Cir. 1987) (holding that district

court’s abstention decision rendered moot the separate question of whether the district

court had properly rejected the bankruptcy court’s conclusions). Accordingly, we dismiss

the plaintiffs’ appeal of the district court’s decision denying their motion to amend their

complaint. See id.


                                               15
                                     CONCLUSION



       For the foregoing reasons, we affirm the judgment of the district court abstaining

from exercising jurisdiction under Younger. We also affirm the district court’s denial of

the plaintiffs’ motion for a preliminary injunction and dismiss as moot the plaintiffs’

appeal of the district court’s decision denying their motion to amend their complaint.




                                             16
