Lowden v. County Of Clare
| Decision Date | 01 July 2010 |
| Docket Number | Case No. 09-11209-BC. |
| Parties | Lewis LOWDEN, Robert Lowden, personal representative of the estate of Jean Lowden, Plaintiffs,v.COUNTY OF CLARE, Lawrence Kahsin, Calvin Woodstock, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
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Cynthia Heenan, Hugh M. Davis, Jr., Constitutional Litigation Associates, Daniel S. Korobkin, Michael J. Steinberg, American Civil Liberties Union of Michigan, Detroit, MI, for Plaintiffs.
Jason D. Kolkema, Patrick A. Aseltyne, Johnson, Rosati, Lansing, MI, for Defendants.
Lewis and Jean Lowden sought to attend the funeral for their deceased friend, Corporal Todd Motley, on September 26, 2007. The Lowdens were included in the procession and had a funeral flag identifying the vehicle as a part of the ceremonial travel to the cemetery. The Lowdens were detained by county sheriff deputies, arrested, and jailed for twenty-four hours because the van that they were driving in contained political information, mostly critical of then-U.S. President George W. Bush. The sheriff deputies initiated the arrest based on the Michigan funeral protest statute, Mich. Comp. Laws § 750.167d. 1
Plaintiffs Lewis Lowden and Robert Lowden 2 (“Plaintiffs”) filed the instant complaint against Defendants Clare County (“the County”), and Sheriff Deputies Lawrence Kahsin and Calvin Woodcock (“Deputies Kahsin and Woodcock”) contending, among other things, that the Michigan funeral protest statute that was the basis for their arrest is unconstitutionally vague and furnished inadequate direction to law enforcement under the Fourteenth Amendment to the U.S. Constitution. They also contend that the statute is unconstitutionally overbroad because the statute limits communication that is protected by the First Amendment to the U.S. Constitution. Plaintiffs contend that the statute fails to satisfy both constitutional provisions “on its face” and in the manner in which Defendants applied the statute in deciding to arrest the Lowdens. Few would dispute the State's interest in protecting the privacy of attendees at a fallen soldier's funeral, but likewise, few would dispute that “the First Amendment recognizes ... that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.” City of Houston v. Hill, 482 U.S. 451, 472, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).
On January 29, 2010, Michigan Attorney General Michael Cox intervened in the case pursuant to 28 U.S.C. § 2403(b) to defend the constitutionality of the Michigan statute. The statute provides in full:
Mich. Comp. Laws § 750.167d. A violation of the statute is punishable by up to two years' imprisonment. Mich. Comp. Laws § 750.168. Plaintiffs' claims specifically focus on the “adversely affect” language of the statute, the statute's application to an area within 500 feet of a funeral or related event, and the statute's application to funeral processions.
Plaintiffs' complaint alleges four causes of action pursuant to 42 U.S.C. § 1983, including: (1) violations of the First Amendment based on overbreadth; (2) violations of the Due Process Clause of the Fourteenth Amendment based on vagueness; (3) violations of the Fourth Amendment; and (4) municipal liability for violations of the First, Fourth, and Fourteenth Amendments. Plaintiffs seek a declaration that the Lowdens' First, Fourth, and Fourteenth Amendment rights were violated by Defendants; a declaration that the Michigan funeral protest statute is unconstitutional on its face; compensatory damages for, inter alia, attorney's fees incurred to defend criminal charges and fees to recover the Lowdens' van from an impound lot; and costs and attorney's fees pursuant to 42 U.S.C. § 1988.
On March 26, 2010, the Court addressed three dispositive motions: (1) Deputies Kahsin and Woodcock and the County's motion to dismiss or for judgment on the pleadings; (2) Plaintiffs' motion for partial judgment on the pleadings; and (3) the Attorney General's motion for summary judgment. The Court concluded that the County was not entitled to dismissal of Plaintiffs' claims against it because Plaintiffs plead sufficient facts to plausibly suggest an actionable municipal policy. The Court also determined that Deputies Kahsin and Woodcock were not entitled to qualified immunity on Plaintiffs' Fourth Amendment cause of action or as-applied First and Fourteenth Amendment causes of action because Defendants' conduct, as alleged by Plaintiffs in the complaint, establishes violations of Plaintiffs' clearly established constitutional rights. On the other hand, the Court found that Deputies Kahsin and Woodcock were entitled to qualified immunity on Plaintiffs' First and Fourteenth Amendment facial challenges to the Michigan funeral protest statute because it was not clearly established that the statute on its face is unconstitutional, if it is in fact unconstitutional.
While the Court has not found that the statute is unconstitutional, the qualified immunity analysis of Plaintiffs' facial challenges suggests that there is at least a fair probability that the statute is unconstitutional as to the “adversely affect” language of the statute, its application to an area within 500 feet of a funeral or related event, and its application to funeral processions. In light of the fact that Deputies Kahsin and Woodcock were entitled to qualified immunity as to Plaintiffs' facial challenges to the statute, the Court requested supplemental briefing as to the propriety of the Court entertaining Plaintiffs' request for declaratory relief.
As noted earlier, Plaintiffs contend that this Court should declare that the Michigan funeral protest statute is invalid under both the overbreadth doctrine of the First Amendment and the void for vagueness doctrine of the Due Process Clause of the Fourteenth Amendment. Plaintiffs assert that the Court's authority to enter declaratory relief derives from the Declaratory Judgment Act, 28 U.S.C. § 2201(a): “In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Generally, Plaintiffs contend that the Court should exercise its discretion to provide declaratory relief because doing so would “serve a useful purpose in clarifying the legal relations at issue” by “putting the public on notice” that a given practice or statute is unconstitutional. Hanas v. Inner City Christian Outreach, Inc., 542 F.Supp.2d 683, 693 (E.D.Mich.2008).
In contrast, the Attorney General emphasizes that, Phelps-Roper v. Strickland, 539 F.3d 356, 361 (6th Cir.2008) (citations omitted). Facial challenges also “run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Id. (citation and quotation omitted). Too, “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id. Finally, it is not insignificant that the state courts have not had an opportunity to adopt a construction that would narrow the Michigan statute in a way that would avoid constitutional problems.
Plaintiffs' and the Attorney General's supplemental briefs focus on two distinct questions. First, the parties' briefs address whether the Court should exercise its discretion under the Declaratory Judgment Act. Second, the parties' briefs address whether the Court should abstain from addressing Plaintiffs' facial challenges under either the Pullman or Burford doctrines. See Steffel v. Thompson, 415 U.S. 452, 474 n. 21, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ().
Plaintiffs assert that declaratory relief is proper in this case because Congress intended that the Declaratory Judgment Act be used to challenge the constitutionality of state criminal statutes. Plaintiffs contrast declaratory judgments with injunctions by emphasizing that declaratory judgments are less intrusive of state authority than injunctions, and therefore do not implicate federalism concerns to the same extent as injunctions. Moreover, in this case, federalism concerns are lessened further because no case is pending before a state court and declaratory relief will not prevent Michigan courts from interpreting the Michigan funeral protest statute in the future.
Plaintiffs rely primarily on Steffel, 415...
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