1

 For additional factual background, see [Dkt. # 52]; Lowden v. County of Clare, No. 09-11209, - - -

F. Supp. 2d - - - -, 2010 WL 1254591, at *5-6 (E.D. Mich. Mar. 26, 2010).

2

 Plaintiff Robert Lowden is the personal representative of the estate of Jean Lowden.

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LEWIS LOWDEN, ROBERT

LOWDEN, personal representative

of the estate of Jean Lowden,

Plaintiffs,

Case Number 09-11209-BC

v. Honorable Thomas L. Ludington

COUNTY OF CLARE, LAWRENCE

KAHSIN, CALVIN WOODSTOCK,

Defendants.

__________________________________/ 

OPINION AND ORDER REGARDING DECLARATORY RELIEF

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 Lowden2 (“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
-2-

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 (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:

(1) A person shall not do any of the following within 500 feet of a building or other location

where a funeral, memorial service, or viewing of a deceased person is being conducted or

within 500 feet of a funeral procession or burial:

(a) Make loud and raucous noise and continue to do so after being asked to stop.

(b) Make any statement or gesture that would make a reasonable person under the

circumstances feel intimidated, threatened, or harassed.

(c) Engage in any other conduct that the person knows or should reasonably know will

disturb, disrupt, or adversely affect the funeral, memorial service, viewing of the

deceased person, funeral procession, or burial.

(2) A person who violates subsection (1) is a disorderly person and is guilty of a felony

punishable as provided under section 168. 

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
-3-

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
-4-

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, “[c]laims of facial invalidity often rest on

speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis

of factually barebones records.” Phelps-Roper v. Strickland, 539 F.3d 356, 361 (6th Cir. 2008)
-5-

(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 (1974) (noting that “[a]bstention [is] a question entirely

separate from the question of granting declaratory relief”).

I

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.
-6-

Plaintiffs rely primarily on Steffel, 415 U.S. 452, to support their position that addressing the

request for declaratory relief is proper under the circumstances of this case. As characterized by the

Court itself, Steffel addressed “whether declaratory relief is precluded when a state prosecution has

been threatened, but is not pending, and a showing of bad-faith enforcement or other special

circumstances has not been made.” Id. at 454. The petitioner’s complaint requested a declaratory

judgment pursuant to the Declaratory Judgment Act, determining that a Georgia trespassing law was

being applied in violation of his First and Fourteenth Amendment rights. Id. at 454-55. On two

occasions, the petitioner sought to distribute handbills at a shopping center, protesting American

involvement in Vietnam and Southeast Asia, and was told by police officers that he would be

arrested if he did not stop. Id. at 455. The petitioner stopped on both occasions, but on the second

occasion, a companion did not stop handbilling and was arrested. Id.

On a petition for writ of certiori appealing the lower courts’ denial of declaratory relief, the

Court first addressed whether there was an “actual controversy” within the meaning of Article III

of the U.S. Constitution and the Declaratory Judgment Act. The Court noted that the warnings

issued against the petitioner and the actual arrest of his companion were “ample demonstration that

petitioner’s concern with arrest has not been ‘chimerical.’ ” Id. at 458-59 (quoting Poe v. Ullman,

367 U.S. 497, 508 (1961)). The Court also noted that “petitioner’s challenge is to those specific

provisions of state law which have provided the basis for threats of criminal prosecution against

him.” Id. at 459. Nonetheless, the Court found that the district court, on remand, would need to

determine if “the recent developments reducing the Nation’s involvement in [Vietnam and Southeast

Asia] . . . have so altered petitioner’s desire to engage in handbilling at the shopping center that it

can no longer be said that this case presents ‘a substantial controversy between parties having
-7-

adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory

judgment.’ ” Id. at 460.

Next, the Court addressed “the question of whether the District Court and the Court of

Appeals correctly found petitioner’s request for declaratory relief inappropriate.” Id. The Court

briefly reviewed two cases. First, in Younger v. Harris, 401 U.S. 37 (1971), the Court recognized

that “federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions”

because a state proceeding provides a “vehicle for vindicating . . . constitutional rights” when state

courts have the same duty as federal courts to enforce rights protected by the U.S. Constitution.

Steffel, 415 U.S. at 460-61. Second, in Samuels v. Mackell, 401 U.S. 66 (1971), the Court

emphasized that “the intrusive effect of declaratory relief ‘will result in precisely the same

interference with and disruption of state proceedings that the long-standing policy limiting

injunctions was designed to avoid,’ ” and therefore “the same equitable principles relevant to the

propriety of an injunction must be taken into consideration by federal district courts in determining

whether to issue a declaratory judgment.” Steffel, 415 U.S. at 461.

The Court went on to explain that “[n]either Younger nor Samuels . . . decided the question

whether federal intervention might be permissible in the absence of a pending state prosecution.”

Id. The Court highlighted that “the relevant principles of equity, comity, and federalism ‘have little

force in the absence of a pending state proceeding.’ ” Id. at 462 (quoting Lake Carriers’ Ass’n v.

MacMullan, 406 U.S. 498, 509 (1972)). This is because “federal intervention does not result in

duplicative legal proceedings or disruption of the state criminal justice system; nor can [it] be

interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.”

Id. The Court even went so far as to suggest that “a refusal on the part of the federal courts to
-8-

intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla

of intentionally flouting state law and the Charybdis of forgoing what he believes to be

constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.”

Id. (citing Dombrowski v. Pfister, 380 U.S. 479, 490 (1965)).

The Court further noted that declaratory relief “is a less harsh and abrasive remedy than an

the injunction.” Id. at 463 (quoting Perez v. Ledesma, 401 U.S. 82, 104 (1971) (separate opinion

of Brennan, J.)). In addition, when Congress enacted the Declaratory Judgment Act in 1934, it

“plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction

and to be utilized to test the constitutionality of state criminal statutes in cases where injunctive

relief would be unavailable.” Id. at 466 (citing Perez, 401 U.S. at 111-115 (separate opinion of

Brennan, J., discussing legislative history)). In Perez, Justice Brennan explained:

Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff

though it cannot make even an unconstitutional state statute disappear. A state statute may

be declared unconstitutional in toto - that is, incapable of having constitutional applications;

or it may be declared unconstitutionally vague or overbroad - that is, incapable of being

constitutionally applied to the full extent of its purport. In either case, a federal declaration

of unconstitutionality reflects the opinion of the federal court that the statute cannot be fully

enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that

this Court stands ready to reverse any conviction under the statute. If a declaration of partial

unconstitutionality is affirmed by this Court, the implication is that this Court will overturn

particular applications of the statute, but that if the statute is narrowly construed by the state

courts it will not be incapable of constitutional applications. Accordingly, the declaration

does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus,

where the highest court of a State has had an opportunity to give a statute regulating

expression a narrowing or clarifying construction but has failed to do so, and later a federal

court declares the statute unconstitutionally vague or overbroad, it may well be open to a

state prosecutor, after the federal court decision, to bring a prosecution under the statute if

he reasonably believes that the defendant’s conduct is not constitutionally protected and that

the state courts may give the statute a construction so as to yield a constitutionally valid

conviction. Even where a declaration of unconstitutionality is not reviewed by this Court,

the declaration may still be able to cut down the deterrent effect of an unconstitutional state

statute. The persuasive force of the court’s opinion and judgment may lead state

prosecutors, courts, and legislators to reconsider their respective responsibilities toward the
-9-

statute. Enforcement policies or judicial construction may be changed, or the legislature may

repeal the statute and start anew. Finally, the federal court judgment may have some res

judicata effect, though this point is not free from difficulty and the governing rules remain

to be developed with a view to the proper workings of a federal system.

Steffel, 415 U.S. at 469-70 (quoting Perez, 401 U.S. at 124-26 (separate opinion of Brennan, J.)).

Ultimately, the Court found that “[i]n the instant case, principles of federalism not only do

not preclude federal intervention, they compel it. Requiring federal courts totally to step aside when

no state criminal prosecution is pending against the federal plaintiff would turn federalism on its

head.” Id. at 472. The Court explained that exhaustion of state remedies is not required to pursue

claims under 42 U.S.C. § 1983, but that is “precisely what would be required if both federal

injunctive and declaratory relief were unavailable in a case where no state prosecution had been

commenced.” Id. at 473.

The Attorney General advances Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), to

argue that this Court should not invalidate the Michigan funeral protest statute in its entirety. In

Brockett, the Court found that “the Ninth Circuit erred in invalidating in its entirety a Washington

statute aimed at preventing and punishing the publication of obscene materials.” Id. at 493. In part,

the statute placed restrictions on “lewd films” and “lewd publications.” Id. “Lewd matter” was

defined to mean any matter “[w]hich the average person . . . would find . . . appeals to the prurient

interest.” Id. In turn, the word “prurient” was defined to mean “that which incites lasciviousness

or lust.” Id. at 494. The Ninth Circuit found that “by including ‘lust’ in its definition of ‘prurient,’

the Washington state legislature had intended the statute to reach material that merely stimulated

normal sexual responses, material that it considered to be constitutionally protected.” Id. at 495.

The court of appeals held that a facial challenge was “appropriate despite the fact that the law had

not yet been authoritatively interpreted or enforced,” particularly in light of the potential “chilling
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effect on protected expression.” Id. at 495.

The Supreme Court found that “the Washington law should have been invalidated only

insofar as the word ‘lust’ is to be understood as reaching protected materials.” Id. at 504. The Court

was “unconvinced that the identified overbreadth is incurable and would taint all possible

applications of the statute.” Id. The Court explained that “[i]f, as we have held, prurience may be

constitutionally defined for the purposes of identifying obscenity as that which appeals to a shameful

or morbid interest in sex, Roth v. United States, 354 U.S. 476 (1957), it is equally certain that if the

statute at issue here is invalidated only insofar as the word ‘lust’ is taken to include normal interest

in sex, the statute would pass constitutional muster and would validly reach the whole range of

obscene publications.” Id. at 504-05. In addition, “had the Court of Appeals thought that ‘lust’

refers only to normal sexual appetites, it could have excised the word from the statute entirely, since

the statutory definition of prurience referred to ‘lasciviousness’ as well as ‘lust.’ ” Id. at 505. The

Court did however recognize that “[p]artial invalidation would be improper if it were contrary to

legislative intent in the sense that the legislature passed an inseverable Act or would not have passed

it had it known the challenged provision was invalid.” Id. at 506.

Underlying the Brockett decision were two “cardinal rules governing the federal courts.”

Id. at 501. First, a federal court should “never anticipate a question of constitutional law in advance

of the necessity of deciding it.” Id. (quotation omitted). Second, a federal court should “never . .

. formulate a rule of constitutional law broader than is required by the precise facts to which it is to

be applied.” Id. (quotation omitted). Similarly, the Court recognized the general rule that an

individual to whom a statute constitutionally applies cannot challenge a statute simply because it

“might also be taken as applying to other persons or other situations in which its application might
-11-

be unconstitutional.” Id. at 502 (quoting United States v. Raines, 362 U.S. 17, 21 (1960)).

Furthermore, “the same statute may be in part constitutional and in part unconstitutional, and . . . if

the parts are wholly independent of each other, that which is constitutional may stand while that

which is unconstitutional will be rejected.” Id. (quoting Allen v. Louisiana, 103 U.S. 80, 83-84

(1881)).

Although the First Amendment was implicated by the case before it, the Court found that

“the rule that a federal court should not extend its invalidation of a statute further than necessary to

dispose of the case before it” was applicable. Id. The Court recognized that when “overbreadth is

‘substantial,’ the law may not be enforced against anyone, including the party before the court, until

it is narrowed to reach only unprotected activity, whether by legislative action or by judicial

construction or partial invalidation.” Id. at 503-04 (citing Broadrick v. Oklahoma, 413 U.S. 601

(1973)). That principle is significant when “an individual whose own speech or expressive conduct

may validly be prohibited or sanctioned” and allows such an individual to “challenge a statute on

its face because it also threatens others not before the court - those who desire to engage in legally

protected expression but who may refrain from doing so rather than risk prosecution or undertake

to have the law invalidated.” Id. at 503. In contrast, when “the parties challenging the statute are

those who desire to engage in protected speech that the overbroad statute purports to punish . . .

there is no concern that an attack on the statute will be unduly delayed or protected speech

discouraged.” Id. at 504. Thus, the statute may “be declared invalid to the extent that it reaches too

far, but otherwise left intact.” Id.

The Attorney General also advances a five-factor test enunciated in Grand Trunk W. R.R.

Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984), to argue that this Court, in the exercise of
-12-

its discretion, should decide not to entertain Plaintiffs’ request for declaratory relief. In Grand

Trunk, the Sixth Circuit began with the proposition that two general principles apply to determine

whether declaratory relief is appropriate. Id. at 326 (citing E. Borchard, Declaratory Judgments 299

(2d ed. 1941)) (further citations omitted). The first principle is whether a declaratory judgment “will

serve a useful purpose in clarifying and settling the legal relations in issue.” Id. (quotation omitted).

The second principle is whether it will “terminate and afford relief from the uncertainty, insecurity,

and controversy giving rise to the proceeding.” Id. (quotations omitted). “[W]hen neither of these

results can be accomplished, the court should decline to render the declaration prayed.” Id.

The Sixth Circuit further explained that the following “factors” are considered:

(1) whether the declaratory action would settle the controversy; (2) whether the declaratory

action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the

declaratory remedy is being used merely for the purpose of “procedural fencing” or “to

provide an arena for a race for res judicata;” (4) whether the use of a declaratory action

would increase friction between our federal and state courts and improperly encroach upon

state jurisdiction; and (5) whether there is an alternative remedy which is better or more

effective.

Id. (citations omitted). In applying the factors to the case before it, the Sixth Circuit found that a

declaratory judgment was inappropriate:

The instant action does not involve an independent dispute because it arises from and

affects a pending Illinois lawsuit. It would not clear up the legal issues in that case. Plaintiff

Grand Trunk simply seeks to obtain in this lawsuit a judgment that overturns Judge

Sullivan’s earlier order regarding Grand Trunk’s indemnity claim. The case would continue

in the Illinois court, and the effect of our ruling on that proceeding is unclear.

. . . Grand Trunk’s request for declaratory relief is an attempt to have the federal courts

do what the state court has already refused to do. As such, Grand Trunk’s request for

declaratory relief is not only an impermissible attempt to race with Conrail to obtain a

favorable judgment, but also will create unnecessary friction between federal and state

courts.

. . . If Judge Sullivan erred in his indemnity ruling, Grand Trunk can appeal his ruling.

Grand Trunk has never attempted to have Judge Sullivan certify the question of

indemnification to an Illinois appellate court under Supreme Court Rule 304, the normal
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avenue of interlocutory review.

Id. at 326-27. See also Bituminous Cas. Corp. v. J & L Lumber Co., 373 F.3d 807, 812 (6th Cir.

2004) (“We have repeatedly held in insurance coverage diversity cases that declaratory judgment

actions seeking an advance opinion on indemnity issues are seldom helpful in resolving an ongoing

action in another court.”) (quotation omitted).

With respect to the first two factors, “it is almost always the case that if a declaratory

judgment will settle the controversy, then it will clarify the legal relations in issue.” Scottsdale Ins.

Co. v. Flowers, 513 F.3d 546, 557 (6th Cir. 2008). Here, the Attorney General asserts that a

declaratory judgment will not “settle the controversy,” because “the overbreadth/vagueness facial

challenge to the State’s funeral statute cover a myriad of hypothetical facts that are themselves broad

and abstract, [and] the requested relief does not address the actual controversy presented in this

case.” Plaintiffs suggest that application of such logic would mean that a facial challenge could

never “settle the controversy” presented in a case.

The Attorney General further asserts that it is significant that “any declaratory judgment

entered on this claim would have little or [sic] effect outside the context of the case” because it will

have limited precedential value and does not bind state actors. The Attorney General also

emphasizes that a declaratory judgment will not impact Plaintiffs’ remaining claims – their Monell

claims against the County and as-applied claims against Deputies Kahsin and Woodcock.

In contrast, Plaintiffs contend that this controversy will be settled by a declaratory judgment,

particularly when there is no parallel proceeding in state court. See Scottsdale v. Flowers, 513 F.3d

at 555-56 (suggesting that a controversy is not considered settled when a relatively narrow issue

presented to a federal court for declaratory relief can be considered in a broader, pending state court
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action between the parties). Plaintiffs also suggest that declaratory relief will serve the useful

purpose of clarifying the constitutional rights at issue.

In light of the fact that there is no state court action pending in which the questions regarding

the facial constitutionality of the Michigan statute could be addressed, Plaintiffs’ position as to the

first two factors is persuasive. The action before this Court encompasses the entire controversy

between the parties. Moreover, in Scottsdale v. Flowers, the Sixth Circuit resolved a “split” in its

precedent, and found that “the district court’s decision must only clarify the legal relations presented

in the declaratory judgment action” and need not “also clarify the legal relations in the underlying

state action.” 513 F.3d at 557. The Sixth Circuit explained that “[t]he requirement that the

judgment clarify the legal relationships of the parties is based upon our desire for the declaratory

judgment to provide a final resolution of the discrete dispute presented.” Id. The court implied that

it is problematic if declaratory relief granted by the federal court could “create any confusion about

the resolution of . . . issues” presented in the state court action. Id. See, e.g., Bituminous Cas. Corp.,

373 F.3d at 813-14 (finding that the first two factors weighed against granting declaratory relief

when the issue presented in the declaratory action in federal court was already being addressed in

two state court actions and would not be binding on a particular party to the state court actions that

was not a party to the federal action).

Moving on to the third factor, the Attorney General concedes that this factor weighs in favor

of, or at least not against, granting declaratory relief, because Plaintiffs are not using this action for

purposes of “procedural fencing.”

With respect to the fourth factor, “whether the use of a declaratory action would increase

friction between our federal and state courts and improperly encroach upon state jurisdiction,”
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Plaintiffs and the Attorney General acknowledge that there are three “subfactors” to consider:

1. [W]hether the underlying factual issues are important to an informed resolution of the

case;

2. [W]hether the state trial court is in a better position to evaluate those factual issues than

is the federal court; and

3. [W]hether there is a close nexus between the underlying factual and legal issues and state

law and/or public policy, or whether federal common or statutory law dictates a resolution

of the declaratory judgment action.

Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 968 (6th Cir. 2000). Consideration of these subfactors

is necessary, because “the mere existence of a state court proceeding is not determinative of

improper federal encroachment upon state jurisdiction.” Scottsdale v. Flowers, 513 F.3d at 560.

A primary focus of these factors is whether “resolution of the issue raised in federal court will

require making factual findings that might conflict with similar findings made by the state court.”

Id. See also Bogaert v. Land, 675 F. Supp. 2d 742, 748 (W.D. Mich. 2009) (noting without

explanation that “a federal court’s ruling on the constitutionality of a state law does not create the

kind of friction between the state and federal systems that courts should avoid.”).

Here, the Attorney General acknowledges that “[t]he underlying factual issues specific to

this case are not important to a resolution of the declaratory judgment action because the facial

challenge would be resolved here without application of a specific set of facts.” Rather, the

Attorney General argues simply that the better course of action is to allow Michigan courts to

construe, and to potentially clarify and narrow, the Michigan statute as specific sets of facts are

presented to those courts. The Attorney General also suggests that this action implicates matters of

public policy and issues of significant state interest.

While a state court is in a better position to “narrow” the Michigan statute, whether a

Michigan court will actually find ground to do so is speculative when no state case is pending. See
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Hill, 482 U.S. at 469 (noting that the fact that “the state courts have not had an opportunity to

construe the statute” is “not in itself . . . controlling”); Scottsdale v. Roumph, 211 F.3d at 969 (noting

that “when an undetermined question of state law is presented, . . . it is an appropriate consideration

for the court to weigh in the exercise of its discretion,” but has “less force . . . when the state court

is not considering the issues”). In addition, a Michigan court is not necessarily in a “better position”

to decide the important federal constitutional questions, despite the fact that Michigan courts may

do so.

Finally, as to the fifth factor, the Attorney General suggests that Plaintiffs have an

“alternative remedy” available because they can pursue their as-applied claims or could file a

declaratory judgment action in a Michigan court. Notably, the Attorney General does not explain

why these alternatives are “better or more effective.” As Plaintiffs suggest, it is not apparent how

an action in state court is “better or more effective” given the federal constitutional questions raised

by Plaintiffs’ claims.

Based on the above, it is appropriate for this Court to entertain Plaintiffs’ request for

declaratory relief. What remains to be clarified, however, is the precise scope of the declaratory

relief. According to the complaint, Plaintiffs seek “a declaration that Michigan’s funeral protest law

is unconstitutional on its face and as applied.” Compl. ¶ 5. More specifically, Plaintiffs request that

the Court “declare that the Lowdens’ rights under the First, Fourth, and Fourteenth Amendments

were violated by Defendants” and “declare M.C.L. § 750.167d unconstitutional on its face.” At this

juncture, Plaintiffs have not proposed specific language to be used by the Court in granting

declaratory relief as to Plaintiffs’ facial challenges.

Importantly, to the extent that invalidation of the Michigan funeral protest statute is
-17-

appropriate, the statute should only be invalidated to the extent necessary. It does not appear that

the statute should be invalidated in its entirety. For example, the Court could potentially strike the

“adversely affects” language, which is clearly implicated by both Plaintiffs’ overbreadth and

vagueness claims. Yet, if the Court does so, it is questionable whether it is also necessary for the

Court to address the 500 foot “floating” buffer zone around funeral processions, or the size of the

zone generally, which are issues implicated by Plaintiffs’ overbreadth claims, but not their

vagueness claims. While the facts alleged in Plaintiffs’ complaint provide some context to address

Plaintiffs’ facial challenges, the facts developed through litigation of Plaintiffs’ as-applied claims

will likely inform on Plaintiffs’ facial challenges. Therefore, it is prudent to allow the case to

proceed further before determining the precise scope of declaratory relief to be granted.

II

Next, the Attorney General argues that the Court should abstain from considering the

constitutionality of the Michigan funeral protest statute under the Pullman doctrine. Pursuant to the

Pullman doctrine, “federal courts should not adjudicate the constitutionality of state enactments

fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass

upon them.” Harrison v. N.A.A.C.P., 360 U.S. 167, 176 (1959) (citing, inter alia, R.R. Comm’n of

Tex. v. Pullman Co., 312 U.S. 496 (1941)). Such abstention “serves the policy of comity inherent

in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional

adjudication.” Id. at 177 (citation omitted).

In City of Houston v. Hill, the City of Houston argued that the Court should abstain from

reaching the merits of the plaintiff’s constitutional challenge to its ordinance based on the Pullman

doctrine on the ground that “there are certain limiting instructions readily available to the state
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courts that would eliminate the ordinance’s overbreadth.” 482 U.S. at 467. The Court

acknowledged that “[a]bstention is, of course, the exception and not the rule, and we have been

particularly reluctant to abstain in cases involving facial challenges based on the First Amendment.”

Id. “We have held that abstention is inappropriate for cases where statutes are justifiably attacked

on their face as abridging free expression.” Id. (quotation omitted).

The Court noted that “[e]ven if this case did not involve a facial challenge under the First

Amendment, we would find abstention inappropriate.” Id. at 468. “In cases involving a facial

challenge to a statute, the pivotal question in determining whether abstention is appropriate is

whether the statute is ‘fairly subject to an interpretation which will render unnecessary or

substantially modify the federal constitutional question.’ ” Id. (quoting Harman v. Forssenius, 380

U.S. 528, 534-535 (1965)) (further citations omitted). “If the statute is not obviously susceptible

of a limiting construction, then even if the statute has ‘never [been] interpreted by a state tribunal

. . . it is the duty of the federal court to exercise its properly invoked jurisdiction.’ ” Id. (quoting

Harman, 380 U.S. at 535) (further citations omitted). In contrast, “[w]here there is no ambiguity

in the state statute, the federal court should not abstain but should proceed to decide the federal

constitutional claim.” Id. (quoting Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971)) (further

citations omitted). A statute is not ambiguous when whether or not it is constitutional “turn[s] upon

a choice between one or several alternative meanings.” Id. (quoting Baggett v. Bullitt, 377 U.S. 360,

378 (1964)) (further citations omitted).

The Court also found that the ordinance before it could not “be limited by severing discrete

unconstitutional subsections from the rest. For example, it cannot be limited to ‘core criminal

conduct’ such as physical assaults or fighting words because those applications are pre-empted by
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state law.” Id. (citation omitted). In other words, “[t]he enforceable portion of this ordinance is a

general prohibition of speech that ‘simply has no core’ of constitutionally unprotected expression

to which it might be limited.” Id. at 468-69 (quoting Smith v. Goguen, 415 U.S. 566, 578 (1974)).

The Court concluded that “[t]he city’s proposed constructions are insufficient, and it is doubtful that

even ‘a remarkable job of plastic surgery upon the face of the ordinance’ could save it.” Id. at 469

(quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 153 (1969)).

The Attorney General asserts that the Michigan funeral protest statute is susceptible to a

narrowing construction, but does not suggest precisely what the narrowing construction would

reasonably be. Based on this possibility, the Attorney General asserts that this Court should abstain

from addressing the constitutionality of the statute on its face.

In contrast, Plaintiffs emphasize the fact that the statute has an ongoing effect on Plaintiff

Lewis Lowden’s First and Fourteenth Amendment rights. See L. Lowden Aff. ¶ 16 (attesting that

“[s]ince I am of an age where . . . I will sadly be required to go to the funerals of family, friends,

neighbors and old military buddies, I will not have political signs on my vehicle about any topic

because of the consequences of some mistaken perception by some officer are too frightening”); Pls.

Supp. Br. Ex. 1. See also Hill 482 U.S. at 474 n.21 (noting that abstention “might be more

appropriate when a challenge is made to the state statute as applied, rather than upon its face, since

the reach of an uncertain state statute might, in that circumstance, be more susceptible of a limiting

or clarifying construction that would avoid the federal constitutional question”). Based on the

potential chilling effect on constitutionally protected speech, because of both overbreadth and

vagueness, Pullman abstention is not appropriate.

The Attorney General also briefly contends that the Court should abstain under the Burford
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doctrine. Under Burford, a federal court may abstain from hearing a case “only if it presents

difficult questions of state law bearing on policy problems of substantial public import whose

importance transcends the result in the case then at bar, or if its adjudication in a federal forum

would be disruptive of state efforts to establish a coherent policy with respect to a matter of

substantial public concern.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726-27 (1996)

(quotations omitted). In reply, Plaintiffs assert that Burford abstention is limited to situations where

state administrative agencies are involved. See New Orleans Pub. Serv., Inc. v. Council of City of

New Orleans, 491 U.S. 350, 361 (1989) (referring to “state administrative agencies” in its

formulation of the rule).

Even if Burford abstention is not quite so limited as Plaintiffs suggest, it is not apparent how

it would be appropriate in the circumstances presented by this case. While the Attorney General

asserts that “the consequences of declaratory relief in this case would extend far beyond the facts

of this case,” Atty Gen. Br. 12, this statement directly contradicts its earlier statement in the same

brief that “any declaratory judgment entered on this claim would have little or [sic] effect outside

the context of this case,” id. 3. In addition, since this case implicates a single law, and not a complex

regulatory scheme, a decision in this case will not “be disruptive of state efforts to establish a

coherent policy.” Burford abstention is not appropriate, and the Court will exercise discretion to

entertain Plaintiffs’ request for declaratory relief.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: July 1, 2010
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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 1, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS