Geoffrey Fieger v. Michigan Supreme Court ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0020p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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GEOFFREY NELS FIEGER and RICHARD L.
Plaintiffs-Appellees, --
STEINBERG,
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No. 07-2213
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>
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v.
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MICHIGAN SUPREME COURT; CLIFFORD W.
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TAYLOR; MAURA D. CORRIGAN; ROBERT P.
YOUNG, JR.; and STEPHEN J. MARKMAN, -
Defendants-Appellants, -
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MICHAEL F. CAVANAUGH; ELIZABETH A.
WEAVER; and MARILYN KELLY, -
Defendants. N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-11684—Arthur J. Tarnow, District Judge.
Argued: October 23, 2008
Decided and Filed: January 20, 2009
Before: BOGGS, Chief Judge; MERRITT and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Margaret A. Nelson, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellants. Michael R. Dezsi, FIEGER, FIEGER, KENNEY, JOHNSON &
GIROUX, Southfield, Michigan, for Appellees. ON BRIEF: Margaret A Nelson,
MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for
Appellants. Michael R. Dezsi, FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX,
Southfield, Michigan, Richard L. Steinberg, Detroit, Michigan, for Appellees.
GRIFFIN, J., delivered the opinion of the court, in which BOGGS, C. J., joined.
MERRITT, J. (pp. 28-34), delivered a separate dissenting opinion.
1
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 2
_________________
OPINION
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GRIFFIN, Circuit Judge. After a panel of judges on the Michigan Court of Appeals
reversed a $15 million judgment initially entered in favor of his client, and while the case
was pending before the court, attorney Geoffrey Nels Fieger made vulgar comments about
the judges on a radio show he hosted. The Michigan Attorney Grievance Administrator
charged Fieger with violating Michigan Rules of Professional Conduct (MRPC) 3.5(c) and
6.5(a), the “courtesy and civility” provisions. Pursuant to a settlement, Fieger stipulated to
a disciplinary reprimand while reserving his rights to challenge the applicability and
constitutionality of the rules. Thereafter, the Michigan Supreme Court upheld the violations
and the constitutionality of the rules as applied to Fieger. Grievance Adm’r v. Fieger, 719
N.W.2d 123 (Mich. 2006).
In the present case, Fieger and co-plaintiff Richard Steinberg, Fieger’s attorney,
challenge the constitutionality of the disciplinary rules on facial grounds. The United States
District Court for the Eastern District of Michigan held that the courtesy and civility
provisions violate the First and Fourteenth Amendments to the United States Constitution
because the rules are overly broad and vague and enjoined their enforcement.
We vacate the judgment of the district court and remand with instructions to dismiss
the complaint for lack of jurisdiction. We hold that Fieger and Steinberg lack standing
because they have failed to demonstrate actual present harm or a significant possibility of
future harm based on a single, stipulated reprimand; they have not articulated, with any
degree of specificity, their intended speech and conduct; and they have not sufficiently
established a threat of future sanction under the narrow construction of the challenged
provisions applied by the Michigan Supreme Court. For these same reasons, we also hold
that the district court abused its discretion in entering declaratory relief.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 3
I.
The facts are set forth by the Michigan Supreme Court in 719 N.W.2d at 129-31:
In 1997, a jury in the Oakland Circuit Court returned a $15 million verdict
in a medical malpractice action in which [attorney Geoffrey] Fieger
represented the plaintiff Salvatore Badalamenti. On appeal, the defendants
hospital and physician claimed that the verdict was based on insufficient
evidence and that they had been denied their constitutional right to a fair
trial by Mr. Fieger’s intentional misconduct. After hearing argument, a
three-judge panel of the Court of Appeals, Jane Markey, Richard Bandstra,
and Michael Talbot, unanimously ruled on August 20, 1999, that the
defendants were entitled to judgment notwithstanding the verdict because
the plaintiff had failed to provide legally sufficient evidence that would
justify submitting the case to the jury. [Badalamenti v. William Beaumont
Hosp.-Troy, 602 N.W.2d 854 (1999).] The panel also held that Mr. Fieger’s
repeated misconduct by itself would have warranted a new trial. In
particular, the Court of Appeals indicated that Mr. Fieger (1) without any
basis in fact, accused defendants and their witnesses of engaging in a
conspiracy, collusion, and perjury to cover up malpractice, (2) asserted
without any basis in fact that defense witnesses had destroyed, altered, or
suppressed evidence, and (3) insinuated without any basis in fact that one of
the defendants had abandoned the plaintiff's medical care to engage in a
sexual tryst with a nurse. The panel described Mr. Fieger's misconduct as
“truly egregious” and “pervasive” and concluded that it “completely tainted
the proceedings.” Id. at [860].
Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that
which he had exhibited during the Badalamenti trial and on his then-daily
radio program in Southeast Michigan, continued by addressing the three
appellate judges in that case in the following manner, “Hey Michael Talbot,
and Bandstra, and Markey, I declare war on you. You declare it on me, I
declare it on you. Kiss my ass, too.” Mr. Fieger, referring to his client, then
said, “He lost both his hands and both his legs, but according to the Court of
Appeals, he lost a finger. Well, the finger he should keep is the one where
he should shove it up their asses.”
Two days later, on the same radio show, Mr. Fieger called these same judges
“three jackass Court of Appeals judges.” When another person involved in
the broadcast used the word “innuendo,” Mr. Fieger stated, “I know the only
thing that's in their endo should be a large, you know, plunger about the size
of, you know, my fist.” Finally, Mr. Fieger said, “They say under their name,
‘Court of Appeals Judge,’ so anybody that votes for them, they’ve changed
their name from, you know, Adolf Hitler and Goebbels, and I think–what
was Hitler's–Eva Braun, I think it was, is now Judge Markey, she's on the
Court of Appeals.”
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 4
Subsequently, Mr. Fieger filed a motion for reconsideration before the same
panel. After that motion was denied, this Court denied Mr. Fieger’s
application for leave to appeal on March 21, 200[1]. [Badalamenti v.
William Beaumont Hosp.-Troy, 624 N.W.2d 186 (2001).]
On April 16, 2001, the Attorney Grievance Commission (AGC), through its
Grievance Administrator, filed a formal complaint with the ADB [Attorney
Discipline Board], alleging that Mr. Fieger’s comments on August 23 and
25, 1999, were in violation of several provisions of the Michigan Rules of
Professional Conduct, including MRPC 3.5(c), MRPC 6.5(a), and MRPC
8.4(a) and (c). While the complaint was pending, the parties entered into a
stipulation. In return for Mr. Fieger’s agreement not to contest that his
remarks had violated MRPC 3.5(c) and MRPC 6.5(a), the charges alleging
a violation of MRPC 8.4(a) and (c) would be dismissed. The parties further
stipulated the sanction of a reprimand. The agreement was specifically
conditioned on Mr. Fieger’s being allowed to argue on appeal, while the
discipline was stayed, both the applicability and the constitutionality of
1
MRPC 3.5(c) and MRPC 6.5(a).[ ] Mr. Fieger maintained that the rules
were inapplicable because his remarks were made after the case was
completed and were not made in a courtroom. Further, he maintained
that the two rules were unconstitutional because they infringed his First
Amendment rights.
On appeal to the ADB, with one member recused, the remaining eight
members of the ADB issued three opinions. The lead opinion, signed by
board members Theodore J. St. Antoine, William P. Hampton, and
George H. Lennon, concluded that MRPC 3.5(c) and MRPC 6.5(a) did
not apply to Mr. Fieger’s comments because they were made outside the
courtroom in a case they regarded as completed. They further observed
that, if the rules did apply, then they were in violation of the First
Amendment. A second opinion, signed by members Lori McAllister and
Billy Ben Baumann, agreed that Mr. Fieger’s comments were protected
by the First Amendment, but dissented from the lead opinion’s
conclusion that the rules only apply to remarks made within the
courtroom. A third opinion, agreeing in part with the second opinion,
and signed by members Marie E. Martell, Ronald L. Steffens, and Ira
Combs, Jr., held that Mr. Fieger’s remarks, even though made outside the
courtroom, were prohibited by the rules, and that the remarks were not
protected by the First Amendment.
The sum of all this was that a majority (albeit not the same majority for
each issue) concluded that the two rules applied to Mr. Fieger’s
1
MRPC 3.5(c) provides that a lawyer shall not “engage in undignified or discourteous conduct
toward the tribunal.” MRPC 6.5(a) provides that “[a] lawyer shall treat with courtesy and respect all
persons involved in the legal process.” Both rules, collectively, are known as the “courtesy and civility”
provisions.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 5
out-of-court statements, while a different majority concluded that those
rules were in violation of the First Amendment.
The AGC, through its Grievance Administrator, sought leave to appeal
in this Court. We granted leave to appeal to consider whether the
remarks by Mr. Fieger, although uncontestedly discourteous, undignified,
and disrespectful, nevertheless did not warrant professional discipline
because they were made outside the courtroom and after the Court of
Appeals had issued its opinion. We also granted leave to appeal to
consider whether the ADB possesses the authority to decide issues of
constitutionality and whether the two rules in question are constitutional.7
__________________________________________________________
7
696 N.W.2d 703 (2005). Mr. Fieger then filed a notice of
removal on June 8, 2005, removing the case to federal court. Because
Mr. Fieger could not “meet his burden to show removal is proper,” the
federal district judge granted the Grievance Administrator’s motion to
remand the case back to this Court on October 19, 2005. Griev. Adm’r,
409 F. Supp. 2d 858, 865 (E.D. Mich. 2005). Mr. Fieger appealed to the
Sixth Circuit Court of Appeals. On March 10, 2006, the Sixth Circuit
summarily affirmed the district court, concluding that “there is no
conceivable basis to support removal of the action” under 28 U.S.C.
§ 1443(1). Unpublished order, entered March 10, 2006 (Docket No.
05-2572).
__________________________________________________________
The Michigan Supreme Court reversed the decision of the ADB. Id. at 145. The
court first clarified that MRPC 3.5(c) and MRPC 6.5(a) were not designed to “silence,”
“censor,” or “prohibit criticism”; rather, the provisions were intended to prohibit only
“undignified,” “discourteous,” and “disrespectful” conduct or remarks. Id. at 135. The
court then concluded that Fieger violated MRPC 3.5(c) and MRPC 6.5(a) because his
speech and conduct concerned a “pending” case and were directed “toward the tribunal.”
Id. at 136-38. Finally, the court rejected Fieger’s characterization of the speech as
political speech or public-figure comment and held that MRPC 3.5(c) and MRPC 6.5(a)
were not unconstitutionally vague. Id. at 139-44. The United States Supreme Court
denied Fieger’s petition for writ of certiorari. 127 S. Ct. 1257 (2007).
Before the Michigan Supreme Court released its opinion, Fieger and co-plaintiff
Richard Steinberg, Fieger’s attorney, filed suit under the Declaratory Judgment Act, 28
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 6
U.S.C. § 2201(a),2 in the United States District Court for the Eastern District of
Michigan. In their federal suit, plaintiffs neither challenged the Michigan Supreme
Court’s determination that the courtesy and civility rules were constitutional as applied
to Fieger’s conduct and speech, nor sought to vacate the reprimand imposed on Fieger;
rather, plaintiffs raised facial challenges to the courtesy and civility provisions.
Specifically, plaintiffs asserted that the rules violate the First and Fourteenth
Amendments to the United States Constitution because, allegedly, they
(1) unconstitutionally abridge freedom of speech and expression, (2) do not further a
compelling government interest, (3) are not the least restrictive means to further a
government interest, and (4) are unconstitutionally vague and overly broad. Plaintiffs
requested declaratory relief and entry of an injunction preventing enforcement of MRPC
3.5(c) and MRPC 6.5(a).
The district judge granted plaintiffs’ request for declaratory relief, concluding
that MRPC 3.5(c) and MRPC 6.5(a), as construed by the Michigan Supreme Court in
Fieger, are unconstitutionally vague and overly broad and enjoined their enforcement.
The Michigan Supreme Court and four of its justices timely appeal.3
II.
As a preliminary matter, we note that a claimant who makes a facial attack on a
law is requesting “strong medicine.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
“[F]ederal courts do not lightly uphold facial challenges” because such efforts do not
seek to invalidate laws in concrete, factual settings but to “leave nothing standing.”
Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc). Further,
“[c]laims of facial invalidity often rest on speculation[,] . . . raise the risk of premature
interpretation[,] . . . run contrary to the fundamental principle of judicial restraint[,]
2
28 U.S.C. § 2201(a) permits, “[i]n a case of actual controversy within its jurisdiction, . . . “any
court of the United States, upon the filing of an appropriate pleading,” to “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is or could be
sought.” The statute further provides that “[a]ny such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.”
3
The district court entered a judgment dismissing the three justices who dissented from the
Michigan Supreme Court decision.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 7
. . . [and] threaten to short-circuit the democratic process.” Wash. State Grange v. Wash.
State Republican Party, 128 S. Ct. 1184, 1191 (2008) (citations omitted). For these
reasons, facial invalidation of a statute is a remedy that courts employ “sparingly and
only as a last resort.” Broadrick, 413 U.S. at 613.
Moreover, to succeed on their overbreadth challenge, plaintiffs bear a heavy
burden. They must demonstrate that “the statute’s overreach is substantial, not only as
an absolute matter, but judged in relation to the statute’s plainly legitimate sweep . . . .”
Bd. of Trs. v. Fox, 492 U.S. 469, 484-85 (1989) (internal quotations and citation
omitted).
Against this background, we doubt that plaintiffs would be successful on the
merits of their claim. However, we do not decide the merits because plaintiffs lack
standing to assert their claim.
III.
A.
Article III of the United States Constitution “does not extend the ‘judicial power’
to any legal question, wherever and however presented, but only to those legal questions
presented in ‘Cases’ and Controversies.’” Warshak, 532 F.3d at 525 (quoting U.S.
CONST., art. III, § 2).4 In recognition of the Constitution’s limit on judicial authority,
the Declaratory Judgment Act, 28 U.S.C. § 2201(a), permits a court to enter declaratory
relief only “[i]n a case of actual controversy . . . .” Article III’s “case and controversy”
requirement is not satisfied, and a court therefore has no jurisdiction, when the claimant
lacks standing, that is, “a sufficiently concrete and redressable interest in the dispute.”
4
Art. III, § 2, cl. 1 provides:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority; –to all Cases affecting Ambassadors, other public Ministers and
Consuls; –to all Cases of admiralty and maritime Jurisdiction; –to Controversies to
which the United States shall be a Party; –to Controversies between two or more States;
–between a State and Citizens of another State; –between Citizens of different States;
–between Citizens of the same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 8
Warshak, 532 F.3d at 525. Thus, “[s]tanding is the ‘threshold question in every federal
case.’” Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (quoting
Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)).
Whether a party has standing is a question of law that we review de novo. United
Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007).
While litigation based on hypotheticals is disfavored, it is allowed under certain
circumstances in the First Amendment context. Broadrick , 413 U.S. at 612 (1973).
“Litigants . . . are permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or assumption that the
statute’s very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Id.
Despite the relaxed approach to standing in a First Amendment case, the
overbreadth doctrine does not eviscerate the standing requirement, which is a
constitutional mandate that is “absolute” and “irrevocable.” Prime Media, Inc. v. City
of Brentwood, 485 F.3d 343, 349-50 (6th Cir. 2007) (citing Warth v. Seldin, 422 U.S.
490, 500 (1975)). Indeed, “[t]he Supreme Court has made clear that the injury in fact
requirement still applies to overbreadth claims under the First Amendment.” Prime
Media, 485 F.3d at 350 (citing Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392-93
(1988) (holding that “[t]o bring a cause of action in federal court requires that plaintiffs
establish at an irreducible minimum an injury in fact; that is, there must be some
threatened or actual injury resulting from the putatively illegal action.”); Sec’y of State
of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984) (“The crucial
issues [for overbreadth standing] are whether [the plaintiff] satisfies the requirement of
injury-in-fact, and whether [the plaintiff] can be expected satisfactorily to frame the
issues in the case.”).
“The burden of establishing standing is on the party seeking federal court
action.” Rosen v. Tenn. Comm’r of Fin. & Admin., 288 F.3d 918, 927 (6th Cir. 2002)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992)). To satisfy the
Constitution’s standing requirement, a party must establish that:
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 9
(1) he or she has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision. In the context of a declaratory
judgment action, allegations of past injury alone are not sufficient to
confer standing. The plaintiff must allege and/or demonstrate actual
present harm or a significant possibility of future harm.
Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006) (internal citations and quotation
marks omitted).
Fieger presents two arguments in support of his contention that he has standing
to make facial challenges to MRPC 3.5(c) and MRPC 6.5(a). First, he asserts that he
suffers actual present harm because the courtesy and civility rules and the threat of
discipline for violating them have “chilled” his speech and conduct. Second, he
contends that he suffers a significant possibility of future harm because he has twice
been subjected to disciplinary proceedings under the rules. Steinberg contends that he
has standing to contest the constitutionality of the courtesy and civility rules because
“[s]ince the Michigan Supreme Court released its opinion . . . , Steinberg has, for the
most part, ceased publishing comment publicly critical of the Court.” None of these
arguments, however, is sufficient to confer standing on either plaintiff in this case.
B.
In Morrison v. Board of Education, 521 F.3d 602 (6th Cir. 2008), we observed
that “the Supreme Court is emphatic: ‘Allegations of a subjective “chill” are not an
adequate substitute for a claim of specific present objective harm or a threat of specific
future harm.’” Id. at 608 (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)) (emphasis
added). We also noted that “absent proof of a concrete harm, where a First Amendment
plaintiff only alleges inhibition of speech, the federal courts routinely hold that no
standing exists.” Id. at 609 (citations omitted). In Morrison, we articulated why an
allegation of “chill,” by itself, is insufficient to establish standing in a First Amendment
case:
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 10
In Adult Video Ass’n v. United States Department of Justice, 71 F.3d 563
(6th Cir. 1995), we explained that First Amendment chill typically
constitutes the “reason why the governmental imposition is invalid rather
than . . . the harm which entitles [a party] to challenge it.” Id. at 566
(quoting United Presbyterian Church [in the U.S.A. v. Reagan], 738 F.2d
[1375, []1378 [(1984)]). This understanding of chill comports with the
underlying rationales of intersecting First Amendment doctrines. For
example, the doctrine of overbreadth relies on a “chill” theory to permit
a litigant – who already has standing by virtue of demonstrating a
concrete harm – to challenge a rule that may only affect others. See
Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456, 463 (6th
Cir. 2007) (“[O]verbreadth does not excuse a party’s failure to ‘allege an
injury arising from the specific rule being challenged . . . .’” (quoting
Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir.
2007))); United Presbyterian Church, 738 F.2d at 1379 (“It is only in this
. . . respect that ‘chilling effect’ has anything to do with the doctrine of
standing: It permits a person, who has standing to challenge
governmental action because of the concrete harm it causes him, to assert
a deficiency which may not affect him but only others.”). In order to
have standing, therefore, a litigant alleging chill must still establish that
a concrete harm – i.e., enforcement of a challenged statute – occurred or
is imminent. See Am. Library Ass'n v. Barr, 956 F.2d 1178, 1193 (D.C.
Cir. 1992) (“[W]hether plaintiffs have standing . . . depends on how
likely it is that the government will attempt to use these provisions
against them . . . and not on how much the prospect of enforcement
worries them.”).
Id. at 609-10.
Morrison was a high school student and a Christian who believed that his faith
required him to tell students who were homosexual that their sexual conduct was a sin.
Id. at 605. The high school had a written policy, however, that prohibited students from
derogating other students on the basis of their sexual orientations. Id. “Wary of
potential punishment, Morrison remained silent with respect to his personal beliefs, but
challenged in federal court the Board’s right to stifle his speech.” Id. After filing his
lawsuit, the school board revised its policy and codes of conduct to permit anti-
homosexual speech unless it was “sufficiently severe or pervasive that it adversely
effects a student’s education or creates a climate of hostility or intimidation for that
student, both from the perspective of an objective educator and from the perspective of
the student at whom the harassment is directed.” Id. at 607. The sole issue on appeal
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 11
was whether Morrison had standing to pursue his claim that the school board’s policies
had “chilled” his speech. Id. at 608. We held that he did not. We explained that:
The claim at stake here involves Morrison’s choice to chill his own
speech based on his perception that he would be disciplined for speaking.
But whether he would have been so punished, we can only speculate.
The school district . . . stated that its former discipline policy regarding
instances of harassment or discrimination “shall not be interpreted as
applying to speech otherwise protected under the state or federal
constitutions where the speech does not otherwise materially or
substantially disrupt the educational process.” The record is silent as to
whether the school district threatened to punish or would have punished
Morrison for protected speech in violation of its policy. Morrison asks
us, essentially, to find a justiciable injury where his own subjective
apprehension counseled him to choose caution and where he assumed –
solely on the basis of the Board's 2004-05 policies and without any
specific action by the Board – that were he to speak, punishment would
result. We decline to do so. Absent a concrete act on the part of the
Board, Morrison’s allegations fall squarely within the ambit of
“subjective chill” that the Supreme Court definitively rejected for
standing purposes. Laird, 408 U.S. at 13 (quotation marks omitted).
Morrison cannot point to anything beyond his own “subjective
apprehension and a personal (self-imposed) unwillingness to
communicate,” ACLU [v. Nat’l Sec. Agency], 493 F.3d [644,] [] 662 [(6th
Cir. 2007)], and those allegations of chill, without more, fail to
substantiate an injury-in-fact for standing purposes.
Id.
Although the facts in this case differ from those in Morrison because the
Michigan Supreme Court has sanctioned Fieger under MRPC 3.5(c) and MRPC 6.5(a),
the outcome remains the same for two reasons. First, unlike Morrison, plaintiffs here
make no attempt to articulate, with any amount of specificity, their intended speech or
conduct. In Morrison, we determined that the alleged “chill” was insufficient to
constitute an injury-in-fact, despite a specific, unambiguous proffer by Morrison of his
intended speech. Morrison intended to convey to homosexual students that their sexual
conduct was immoral. Notwithstanding that relatively particularized statement of
intention, we concluded that the threat of punishment under the challenged policies was
still impermissibly conjectural under a policy that had not been enforced. Here, the
converse is present: while the challenged rules have been enforced, plaintiffs fail to
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 12
sufficiently articulate their intended speech or conduct. They make only vague
suggestions of a general desire to criticize the Michigan judiciary. They have not
presented sufficient facts to demonstrate a threat of sanction arising from their
unspecified future criticisms.
Second, the threat of future injury arising from a general desire to criticize the
Michigan judiciary is significantly diminished by the narrow construction placed on the
courtesy and civility provisions by the Michigan Supreme Court and by the specific
factual context in which Fieger was sanctioned. Like the school board in Morrison
which determined that its policy would not apply “to speech otherwise protected under
the state or federal constitutions where the speech does not otherwise materially or
substantially disrupt the educational process[,]” the Michigan Supreme Court
emphasized that Fieger violated the rules, not because he criticized judges, but because
he made vulgar, personally abusive comments about participants in a pending case.
Specifically, the court noted that:
greater restraint . . . is permissible when a case is ongoing than when it
is completed. As the United States Supreme Court said in Gentile [v.
State Bar of Nevada, 501 U.S. 1030, 1070 (1991),] “‘When a case is
finished, courts are subject to the same criticism as other people, but the
propriety and necessity of preventing interference with the course of
justice by premature statement, argument or intimidation hardly can be
denied.’” (Citation omitted.) Accordingly, “the speech of lawyers
representing clients in pending cases may be regulated under a less
demanding standard than that established for regulation of the press
. . . .” Id. at 1074.
Fieger, 719 N.W.2d at 135. In assessing Fieger’s speech, the court explained that:
[t]o call a judge a “jackass,” a “Hitler,” a “Goebbels,” a “Braun” and to
suggest that a lawyer is “declar[ing] war” on them and that the judge
should “[k]iss [the lawyer’s] ass,” or should be anally molested by finger,
fist, or plunger, is, to say the least, not to communicate information;
rather, it is nothing more than personal abuse. We conclude that such
coarseness in the context of an officer of the court participating in a legal
proceeding warrants no First Amendment protection when balanced
against this state’s compelling interest in maintaining public respect for
the integrity of the legal process. United States v. O’Brien, 391 U.S. 367,
377 (1968).
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 13
Id. at 142 (emphasis added). The defendant justices prudently clarified that MRPC
3.5(c) and MRPC 6.5(a) do not preclude lawyers generally from expressing
“disagreement” or “criticism, even strong criticism,” of judges. Id. at 143. Indeed, the
court specifically noted that “lawyers have an unquestioned right to criticize the acts of
courts and judges.” Id. at 144 (citing In re Estes, 94 N.W.2d 916 (1959)). In Fieger’s
case, however, the court determined that his remarks about participants in a pending
legal proceeding were so unambiguously “vulgar and crude” as to be undeserving of
constitutional protection. Fieger, 719 N.W.2d at 144. Fieger’s outrageous remarks were
made during the time allowed to file a motion for reconsideration before the very panel
to which the comments were directed, and such a motion was indeed filed in the
immediate aftermath of the remarks.
In light of the narrowing construction placed on the rules by the Michigan
Supreme Court in Fieger, the court’s acknowledgment that lawyers have a right to
criticize judges generally, and Fieger’s extreme remarks about participants in a pending
case, for which he stipulated that reprimand was warranted, it is incumbent upon
plaintiffs to articulate something more than a generalized, subjective “chilling” of speech
to establish the required injury-in-fact. Specifically, plaintiffs do not suggest that they
or any other Michigan attorneys – at present or at any time in the immediate future –
intend to make vulgar, crude, or personally abusive remarks about participants in
pending cases for which discipline might be threatened under the challenged rules. See
Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980) (noting that
although overbreadth permits a litigant whose own activities are unprotected to assert
the rights of others not before the court, it still requires that the litigant show that the
rights of non-parties have been “substantially abridge[d].”). In fact, plaintiffs do not
allege any intended speech or conduct at all. Thus, the purported “chilling effect” of the
rules on plaintiffs and on Michigan attorneys, in light of the narrow construction placed
on those rules and Fieger’s extreme behavior, is objectively unsubstantiated and,
accordingly, fails to give rise to an injury-in-fact.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 14
Fieger’s contention that he suffers a significant possibility of future harm because
he has twice been subjected to disciplinary proceedings under the rules also does not
confer standing upon him in the present case. Initially, we note that Fieger no longer
hosts the radio show which served as the medium for his sanctioned comments and that
the makeup of the Michigan Supreme Court has changed as a result of the recent
election. In addition, we observe that during the hearing on the parties’ cross-motions
for summary judgment before the district court, Fieger’s counsel repeatedly and
inaccurately stated that Fieger had been charged “numerous” and “several” times under
the courtesy and civility provisions. In fact, Fieger eventually conceded at the hearing
below, in his brief, and at oral argument that he has only twice been “subjected to
disciplinary proceedings” under the provisions.
Upon a thorough examination of the facts surrounding those alleged disciplinary
proceedings, we conclude that they do not support an injury-in-fact in the present case.
In the most recent disciplinary proceeding, which serves as the backdrop for this case
and which arose from Fieger’s remarks on his radio show, Fieger admitted that he
violated MRPC 3.5(c) and MRPC 6.5(a), stipulated to the sanction of reprimand, and
the United States Supreme Court denied review of the Michigan Supreme Court’s ruling
affirming the sanction and upholding the constitutionality of the courtesy and civility
rules. As to the purported second disciplinary proceeding, Fieger’s counsel claimed
ignorance about its circumstances and relied on information he received from opposing
counsel. Opposing counsel stated that “there was a complaint filed,” but “I don’t believe
that there were any formal charges filed against Mr. Fieger in that instance.” That Fieger
conceded the violation and sanction in the most recent incident and was not charged or
sanctioned in the second, combined with his attorney’s lack of knowledge about his
disciplinary history, preclude us from reasonably extrapolating a “significant possibility”
of future injury based on that disciplinary history.5
5
This case is thus distinguishable from Fieger v. Ferry, in which we ruled that Fieger had
standing to challenge the application and constitutionality of Michigan’s recusal rule, MCR 2.003. 471
F.3d at 640-41. In that decision, we concluded that because Fieger had served as counsel on
approximately 38 cases filed in the Michigan Supreme Court and had $90 million in lawsuit awards
pending in the State Court of Appeals, there was a “significant, rather than a remote, possibility that
Fieger’s present and future cases will someday reach the Michigan Supreme Court.” Id. at 643. We
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 15
Even when a party has been unlawfully sanctioned in the past, we have heeded
the Supreme Court’s directive that “‘past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief . . . if unaccompanied by
any continuing, present adverse effects.’” Grendell, 252 F.3d at 832 (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983)). While previous sanctions might, of course,
be “‘evidence bearing on whether there is a real and immediate threat of repeated injury’
. . . where the threat of repeated injury is speculative or tenuous, there is no standing to
seek injunctive relief.” Grendell, 252 F.3d at 833 (quoting Lyons, 461 U.S. at 102).
Grendell, a case virtually identical to this case, controls the outcome of this
appeal. Grendell involved a facial challenge by an attorney to an attorney disciplinary
rule. Specifically, Grendell argued that Ohio Supreme Court Practice Rule XIV, § 5
unconstitutionally permits the imposition of sanctions without affording notice and the
opportunity to be heard, in violation of the Due Process Clause of the Fifth and
Fourteenth Amendments to the United States Constitution. Grendell, 252 F.3d at 830.
The Ohio Supreme Court had sanctioned Grendell under the challenged rule for filing
a frivolous lawsuit. Id. at 831. Grendell then asserted a “general constitutional
challenge [to the rule] seeking declaratory and injunctive relief.” Id. Like Fieger,
Grendell contended that he had standing to assert a facial challenge to the rule because
“the Ohio Supreme Court’s power to sanction attorneys . . . continuously exposes [them]
to the ‘chilling effect’ of the hanging of the ‘Sword of Damocles’ over them.” Id. at 833
(internal quotations omitted). Also like Fieger, Grendell emphasized that he had been
“previously sanctioned” under the challenged rule, id. at 832, and even asserted that his
“fear of unconstitutionally imposed sanctions forced him to withdraw from two recent
cases before the Ohio Supreme Court.” Id. at 834.
Despite Grendell’s claim of the rule’s “chilling effect,” his alleged injury arising
from his withdrawal from two cases because of fear of sanction, and the court’s previous
sanction of him under the disciplinary rule, we nevertheless held that Grendell lacked
determined, therefore, that it was “likely, rather than speculative, that Fieger will again face the recusal
issue that he has faced in past cases.” Id. at 643-44.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 16
standing to assert a facial challenge to the rule. Specifically, we concluded that the
threat of future sanction was “highly conjectural, resting on a string of actions the
occurrence of which is merely speculative.” Grendell, 252 F.3d at 833. We explained
that:
to show a palpable threat of future injury necessary to achieve standing
for declaratory and injunctive relief, Grendell must present evidence
establishing: (1) that he is bringing or highly likely to bring a lawsuit
before the Ohio Supreme Court; (2) that such lawsuit is allegedly
frivolous, exposing him to sanctions under Rule XIV, § 5; (3) that the
Ohio Supreme Court would, in its discretion, impose such sanctions; and
(4) that the imposition of those sanctions would violate due process. Such
a chain of events is simply too attenuated to establish injury in fact, and
to confer the required standing in this case.
Id.
Although Grendell involved a Fifth Amendment due process challenge, and not
a First Amendment challenge, the facts are similar because both cases involve challenges
to attorney discipline rules, both attorneys were sanctioned under those rules, and both
attorneys alleged “chill” or other harm. Accordingly, our reasoning in Grendell is
persuasive. Here, paralleling Grendell, to show a palpable threat of future injury
necessary to achieve standing for declaratory and injunctive relief, plaintiffs must
present evidence establishing: (1) that they are now, or highly likely to be, speaking
about a pending case; (2) that such speech will concern participants in that case and be
vulgar, crude, or personally abusive, exposing them to sanctions under MRPC 3.5(c) or
MRPC 6.5(a); (3) that the Michigan Supreme Court would, in its discretion, impose such
sanctions; and (4) that the imposition of those sanctions would violate plaintiffs’ First
Amendment rights. As in Grendell, we conclude that such a chain of events is simply
too attenuated to establish the injury in fact required to confer standing.
Grendell relied on the Supreme Court’s decision in Lyons. In Lyons, the plaintiff
sought to enjoin the Los Angeles Police Department (“L.A.P.D.”) from using
chokeholds, which had caused several injuries and deaths during arrests, including injury
to Lyons himself. Lyons, 461 U.S. at 97-98, 100. The complaint alleged that the
L.A.P.D.,
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 17
“pursuant to the authorization, instruction, and encouragement of
Defendant City of Los Angeles, regularly and routinely apply these
choke holds in innumerable situations where they are not threatened by
the use of any deadly force whatsoever,” that numerous persons have
been injured as the result of the application of the chokeholds, that Lyons
and others similarly situated are threatened with irreparable injury in the
form of bodily injury and loss of life, and that Lyons “justifiably fears
that any contact he has with Los Angeles Police officers may result in his
being choked and strangled to death without provocation, justification or
other legal excuse.”
Id. at 98. Despite the allegations of widespread injury and even though the L.A.P.D. had
previously used the chokehold against Lyons himself, the Supreme Court nevertheless
held that the future threat of injury was too speculative to support Lyons’s standing to
challenge the constitutionality of the department’s use of chokeholds. See Grendell, 252
F.3d at 833 (discussing Lyons). In reversing the Ninth Circuit’s entry of an injunction
prohibiting the use of chokeholds in certain situations, the Court stated:
Lyons has failed to demonstrate a case or controversy with the City that
would justify the equitable relief sought. Lyons’ standing to seek the
injunction requested depended on whether he was likely to suffer future
injury from the use of the chokeholds by police officers. Count V of the
complaint alleged the traffic stop and choking incident five months
before. That Lyons may have been illegally choked by the police on
October 6, 1976, while presumably affording Lyons standing to claim
damages against the individual officers and perhaps against the City,
does nothing to establish a real and immediate threat that he would again
be stopped for a traffic violation, or for any other offense, by an officer
or officers who would illegally choke him into unconsciousness without
any provocation or resistance on his part. The additional allegation in the
complaint that the police in Los Angeles routinely apply chokeholds in
situations where they are not threatened by the use of deadly force falls
far short of the allegations that would be necessary to establish a case or
controversy between these parties.
Lyons, 461 U.S. at 105.
Here, the justification for plaintiffs’ standing is even less robust than it was for
Lyons’s standing. Not only had Lyons been injured by the chokehold, id. at 97-98, but
he also alleged that the L.A.P.D.’s use of the chokehold was pursuant to a policy, regular
and routine practice, and even encouragement. Id. at 98. Neither Fieger nor Steinberg
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 18
contends that the Michigan Supreme Court or its investigative disciplinary arm are
improperly wielding MRPC 3.5(c) or MRPC 6.5(a) to regularly discipline attorneys for
their speech, nor do we find any information in the record to support such an inference.
In fact, plaintiffs identify no other attorneys, other than Fieger himself, who have been
disciplined under MRPC 3.5(c) or MRPC 6.5(a) for criticizing the Michigan judiciary.
Moreover, plaintiffs do not contend that the attorney disciplinary authorities in
Michigan are specifically targeting them for sanction under the challenged rules.6 In
fact, the district court noted that Fieger is “a vocal, often harsh, and at times vulgar critic
of Michigan’s judiciary.” Despite his significant history of criticizing Michigan’s
judges, it is revealing that Fieger’s record consists of a single, isolated reprimand under
the challenged provisions. Based on that history, Fieger has failed to demonstrate a
reasonable threat of future sanction. See Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298 (1979) (holding that fears of prosecution “that are imaginary or
speculative” do not offend free-speech rights).
Grendell also relied on Ashcroft v. Mattis, 431 U.S. 171 (1977). In that case, the
Supreme Court vacated an en banc decision of the Eighth Circuit and remanded the case
to the district court with instructions to dismiss the complaint for lack of standing. Id.
at 173. In Mattis, police shot and killed the appellee’s eighteen-year old son while the
son attempted to escape arrest. Id. at 171. The father sought a declaration that the state
statute which authorized police to use deadly force in apprehending a person who
committed a felony was unconstitutional. Id. In support of standing, the complaint
alleged that the father “has another son who ‘if ever arrested or brought under an attempt
at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would
therefore be in danger of being killed by these defendants or other police officers . . . .’”
Id. at 172 n.2. The Court, however, ruled that “[s]uch speculation is insufficient to
establish the existence of a present, live controversy.” Id. Resisting the urge to resolve
6
The absence of such allegations again distinguishes this case from Fieger v. Ferry, in which
Fieger alleged in his complaint that the justices on the Michigan Supreme Court were “actively pursuing
disciplinary proceedings against him before the Attorney Grievance Commission.” 471 F.3d at 640.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 19
the merits of the appeal and instead obeying its constitutional mandate, as we do now,
the Court stated:
Although we are urged to consider the merits of the Court of Appeals’
holding, we are unable to do so, because this suit does not now present
a live “case or controversy.” This suit was brought to determine the
police officers’ liability for the death of appellee’s son. That issue has
been decided, and there is no longer any possible basis for a damages
claim. Nor is there any possible basis for a declaratory judgment. For
a declaratory judgment to issue, there must be a dispute which calls, not
for an advisory opinion upon a hypothetical basis, but for an adjudication
of present right upon established facts. Here, . . . appellee’s primary
claim of a present interest in the controversy is that he will obtain
emotional satisfaction from a ruling that his son’s death was wrongful.
Emotional involvement in a lawsuit is not enough to meet the
case-or-controversy requirement . . . .
Id. at 172-73.
The Mattis Court’s holding as to the proper method of consideration of
constitutional issues is emphasized by the fact that eight years later, in Tennessee v.
Garner, 471 U.S. 1 (1985), the Supreme Court decided, in a concrete context, exactly
the issue that could have been before them in Mattis, by holding that indeed it was
unconstitutional to use deadly force to apprehend a person who simply had committed
a felony. Id. at 3. Just as Garner ultimately decided in a concrete situation the abstract
controversy that was not properly before the Court in Mattis, this controversy must await
proper jurisdiction for resolution.
As in Mattis, we do not ignore the context in which this case has arisen.
Although plaintiffs seek a declaration that the courtesy and civility provisions are
unconstitutional on their face, that request springs, not from a vacuum, but from an
adverse determination by Michigan’s highest court of which the United States Supreme
Court denied review. We remind plaintiffs that the court’s judgment is not the subject
of this appeal because, consistent with Mattis, “[t]hat issue has been decided . . . .” Id.
at 172. Nevertheless, Fieger, like the plaintiff in Mattis, attempts to accomplish through
the back door what he could not through the front – invalidation of the very rules that
he admittedly violated. In this way, Fieger’s primary objective resembles that of the
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 20
plaintiff in Mattis: to re-litigate the disciplinary proceedings in Michigan, but this time
in federal court. Fieger invites us to void the rules he violated based on sheer
speculation of future discipline. We decline the invitation.
C.
None of the cases upon which plaintiffs or the district court relied support
plaintiffs’ standing to assert a facial challenge to MRPC 3.5(c) and MRPC 6.5(a). In
Steffel v. Thompson, 415 U.S. 452 (1974), police twice warned the plaintiff and his
companion to stop distributing handbills on an exterior sidewalk of a shopping center
in protest of American involvement in the Vietnam War. Id. at 455. Police threatened
to arrest plaintiff and his companion if they did not cease. Id. Plaintiff left to avoid
arrest. Id. Plaintiff’s companion, however, continued distributing handbills, and police
arrested him and charged him with violating a Georgia criminal trespass statute. Id. at
455-56. Plaintiff, although desiring to return to the shopping center to distribute
handbills, had not done so because he feared that police would arrest him as well. Id.
at 456. “[T]he parties stipulated that, if [plaintiff] returned and refused upon request to
stop handbilling, a warrant would be sworn out and he might be arrested and charged
with a violation of the Georgia statute.” Id.
In reversing the Fifth Circuit’s judgment affirming the district court’s dismissal
of the complaint on the basis that no case and controversy had arisen, the Supreme Court
stated:
Unlike three of the appellees in Younger v. Harris, 401 U.S. [37,] [] 41
[(1971)], petitioner has alleged threats of prosecution that cannot be
characterized as “imaginary or speculative,” id., at 42. He has been twice
warned to stop handbilling that he claims is constitutionally protected
and has been told by the police that if he again handbills at the shopping
center and disobeys a warning to stop he will likely be prosecuted. The
prosecution of petitioner’s handbilling companion is ample
demonstration that petitioner’s concern with arrest has not been
“chimerical,” Poe v. Ullman, 367 U.S. 497, 508 (1961). In these
circumstances, it is not necessary that petitioner first expose himself to
actual arrest or prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights. See, e.g., Epperson
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 21
v. Arkansas, 393 U.S. 97 (1968). Moreover, petitioner’s challenge is to
those specific provisions of state law which have provided the basis for
threats of criminal prosecution against him. Cf. Boyle v. Landry, 401
U.S. 77, 81 (1971); Watson v. Buck, 313 U.S. 387, 399-400 (1941).
Id. at 459.
Steffel is readily distinguishable from this case. The plaintiff in Steffel, unlike
plaintiffs here, was unambiguous in his intended speech – distributing handbills in a
shopping center. Further, the threat of injury in Steffel, unlike the threat of injury here,
was concrete and imminent – the police had arrived and threatened to arrest plaintiff and
charge him with criminal trespass. Police even stipulated that they would do so. Here,
plaintiffs merely assert that they feel “inhibited,” improperly discount the conduct which
led to the reprimand, assert a nebulous desire to criticize Michigan’s judiciary without
considering the impact of the narrow construction of the challenged rules articulated by
the Michigan Supreme Court, and then speculate about the possible result of their
conduct. Fieger has not acted analogously to the plaintiff in Steffel by, for example,
unambiguously alleging that he plans to or wishes to make a similar or identical speech
about some recent case he has lost or specifically intends to use the same language in the
event that he loses any of a number of specific pending cases. His allegations are simply
insufficient to confer standing.
MedImmune, Inc. v. Genentech, Inc., 127 S. Ct. 764 (2007), another case relied
upon by plaintiffs and the district court, is also distinguishable. In Genentech, a patent
licensee paid royalties that it did not believe it owed because had it refused, it would
have exposed itself to treble damages, attorney’s fees, and an injunction prohibiting it
from selling a product that accounted for more than eighty percent of its sales revenue.
Id. at 767-68. The Federal Circuit affirmed the district court’s conclusion that because
the licensee had paid the royalties, albeit under protest, such payment extinguished the
case and controversy and prohibited entry of a declaratory judgment. Id. at 768. The
Supreme Court reversed and held that Article III’s case-or-controversy requirement, as
reflected in the “actual controversy” requirement of the Declaratory Judgment Act, did
not require the licensee to terminate its license agreement, breach the agreement, or
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 22
expose itself to legal repercussions before it could seek a declaratory judgment that the
underlying patent was invalid, unenforceable, or not infringed. Id. at 767. Writing for
the Court, Justice Scalia stated:
Our analysis must begin with the recognition that, where threatened
action by government is concerned, we do not require a plaintiff to
expose himself to liability before bringing suit to challenge the basis for
the threat – for example, the constitutionality of a law threatened to be
enforced. The plaintiff's own action (or inaction) in failing to violate the
law eliminates the imminent threat of prosecution, but nonetheless does
not eliminate Article III jurisdiction.
Id. at 772. In other words, a plaintiff need not “bet the farm, so to speak, by taking the
violative action.” Id.
We agree that the purpose of the Declaratory Judgment Act is to ameliorate the
dilemma posed by “putting the challenger to the choice between abandoning his rights
or risking prosecution.” Id. at 773 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 152
(1967)). However, the Declaratory Judgment Act does not trump the Constitution.
Plaintiffs ignore the Supreme Court’s crucial observation in Genentech that:
There is no dispute that [the case and controversy] standards would have
been satisfied if petitioner had taken the final step of refusing to make
royalty payments under the 1997 license agreement. Respondents claim
a right to royalties under the licensing agreement. Petitioner asserts that
no royalties are owing because the Cabilly II patent is invalid and not
infringed; and alleges (without contradiction) a threat by respondents to
enjoin sales if royalties are not forthcoming. The factual and legal
dimensions of the dispute are well defined and, but for petitioner’s
continuing to make royalty payments, nothing about the dispute would
render it unfit for judicial resolution.
Id. at 771-72 (emphasis added). Thus, Genentech, like Steffel, involved a “well defined”
dispute appropriate for judicial resolution. Plaintiff’s intended conduct in Genentech –
making or refusing to make royalty payments under an agreement – was obvious and the
threat of injury was imminent and concrete. Here, plaintiffs make vague, non-specific
allegations of their intended speech and conduct under an attorney discipline rule that
has been applied to extreme conduct and narrowed by construction. They then speculate
that injury will result from merely criticizing the Michigan judiciary. In that context,
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 23
future injury is conjectural, and the “dispute” is amorphous, rendering it “unfit for
judicial resolution.”
Freedman v. Maryland, 380 U.S. 51 (1965), involved a constitutional challenge
to a state motion picture censorship statute arising from an appeal from a criminal
conviction for violating that statute. Id. at 52. In reversing the state court’s conclusion
that the appellant lacked standing to assert his constitutional claim, the Supreme Court
stated: “Appellant has not challenged the submission requirement in a vacuum but in
a concrete statutory context.” Id. at 56 (emphasis added). The Court explained:
In substance, [appellant’s] argument is that, because the apparatus [of
censorship] operates in a statutory context in which judicial review may
be too little and too late, the Maryland statute lacks sufficient safeguards
for confining the censor’s action to judicially determined constitutional
limits . . . .”
Id. at 57. Thus, Freedman, like Steffel and Genentech, involved a concrete dispute.
In Dombrowski v. Pfister, 380 U.S. 479 (1965), the Supreme Court concluded
that plaintiffs had standing to challenge the constitutionality of Louisiana’s Subversive
Activities and Communist Control Law in the midst of a criminal prosecution for
violating that law because the government exploited the statute for improper purposes,
namely, to target and harass them. Id. at 482. The complaint, supported by affidavits
and a written offer of proof, alleged that:
the threats to enforce the statutes against appellants are not made with
any expectation of securing valid convictions, but rather are part of a
plan to employ arrests, seizures, and threats of prosecution under color
of the statutes to harass appellants and discourage them and their
supporters from asserting and attempting to vindicate the constitutional
rights of Negro citizens of Louisiana.
Id. The Court noted that, despite a prior criminal proceeding in which a state judge
quashed the arrest warrants because they were not based on probable cause, discharged
the appellants, and then granted a motion to suppress seized evidence because a raid
against appellants’ offices was illegal, “Louisiana officials continued, however, to
threaten prosecution of the appellants . . . .” Id. at 488. Appellants then filed their action
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 24
seeking declaratory and injunctive relief. Id. A state judge entered a temporary
restraining order prohibiting prosecutions under the statute pending a hearing and
decision by the district court. Id. When the district court dissolved the temporary
restraining order and dismissed the complaint for failure to state a claim upon which
relief could be granted and on abstention grounds, a grand jury then returned indictments
against the individual appellants under the statute. Id.
In concluding that the complaint alleged “sufficient injury to justify equitable
relief” and that the district court erred in dismissing it, the Court explained:
These events, together with repeated announcements by appellees that
the appellant organization is a subversive or Communist-front
organization, whose members must register or be prosecuted under the
Louisiana statutes, have, appellants allege, frightened off potential
members and contributors. Seizures of documents and records have
paralyzed operations and threatened exposure of the identity of adherents
to a locally unpopular cause. Although the particular seizure has been
quashed in the state courts, the continuing threat of prosecution portends
further arrests and seizures, some of which may be upheld and all of
which will cause the organization inconvenience or worse.
...
Not only does the complaint allege far more than an “injury other than
that incidental to every criminal proceeding brought lawfully and in good
faith,” but appellants allege threats to enforce statutory provisions other
than those under which indictments have been brought. Since there is no
immediate prospect of a final state adjudication as to those other sections
– if, indeed, there is any certainty that prosecution of the pending
indictments will resolve all constitutional issues presented – a series of
state criminal prosecutions will not provide satisfactory resolution of
constitutional issues.
Id. at 488-89 (citations omitted). Further, the Court determined that the district court
erred in abstaining from adjudication pending authoritative interpretation of the statutes
by Louisiana’s courts, explaining:
First, appellants have attacked the good faith of the appellees in
enforcing the statutes, claiming that they have invoked, and threaten to
continue to invoke, criminal process without any hope of ultimate
success, but only to discourage appellants’ civil rights activities.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 25
...
[A]n interpretation rendering the statute inapplicable . . . would merely
mean that appellants might ultimately prevail in the state courts. It
would not alter the impropriety of appellees’ invoking the statute in bad
faith to impose continuing harassment in order to discourage appellants’
activities, as appellees allegedly are doing and plan to continue to do.
Second, appellants have challenged the statutes as overly broad and
vague regulations of expression. We have already seen that where, as
here, prosecutions are actually threatened, this challenge, if not clearly
frivolous, will establish the threat of irreparable injury required by
traditional doctrines of equity.
Id. at 490-91 (citations omitted).
Again, the case before us is clearly distinguishable from Dombrowski for two
reasons. First, this case does not arise in the midst of a criminal prosecution or
disciplinary proceeding. Neither Fieger nor Steinberg is currently being threatened with
discipline under the courtesy and civility rules. Second, we again emphasize that
plaintiffs make no allegation and have not provided any evidence to support an inference
that the Michigan Supreme Court is targeting them, harassing them, or broadly applying
the courtesy and civility provisions to Michigan’s attorney population for the purpose
of stifling fundamental freedoms. If that were the case, Fieger presumably would have
a lengthy disciplinary record and would have asserted such allegations during his
disciplinary proceeding in an effort to convince a federal court to hear the case without
abstaining.7 For these reasons, plaintiffs have not presented an injury in fact.
7
Dombrowski demonstrates why plaintiffs are incorrect in their assertion that:
[t]o argue that Plaintiffs do not have standing to challenge the “courtesy” provisions
would result in an intolerable trick. The trick begins by arguing that Plaintiffs do not
have standing to prospectively challenge the “courtesy” provisions of the rules as
unconstitutional because there is no pending grievance or proceeding against Mr. Fieger.
But if there was a pending grievance or proceeding, Defendant would assuredly assert
(and have successfully asserted in this case) that the Court must abstain from deciding
Plaintiffs’ claims. By arguing lack of standing together with abstention, Defendants are
asking the Court to lock the doors to the courthouse; for there would never, ever be
jurisdiction under such circumstances.
Adopting plaintiffs’ argument, the district court stated:
It should also be noted that if this Court were to adopt Defendants’ standing argument,
Plaintiffs would be stuck in a procedural rabbit hole that would result in Plaintiffs being
forever precluded from possessing the requisite standing required for federal review.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 26
IV.
For the same reasons already articulated, we also conclude that the district court
abused its discretion in entering a declaratory judgment under the Declaratory Judgment
Act. See Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000) (“This court
reviews the district court’s exercise of discretion under the Declaratory Judgment Act,
28 U.S.C. § 2201(a), for abuse of discretion.”).
Since its inception, the Declaratory Judgment Act has been understood
to confer on federal courts unique and substantial discretion in deciding
whether to declare the rights of litigants. On its face, the statute provides
that a court “may declare the rights and other legal relations of any
interested party seeking such declaration[.]” The statute’s textual
commitment to discretion, and the breadth of leeway we have always
understood it to suggest, distinguish the declaratory judgment context
from other areas of the law in which concepts of discretion surface . . . .
When all is said and done, we have concluded, “the propriety of a
declaratory relief in a particular case will depend upon a circumspect
sense of its fitness informed by the teachings and experience concerning
the functions and extent of federal judicial power.”
Roumph, 211 F.3d at 969 (quoting Wilton, 515 U.S. at 286-87)) (citations omitted)
(emphasis added). The present filing, which involves “a close nexus between the
underlying factual and legal issues and state law and/or public policy,” id. at 968 (citing
Wilton v. Seven Falls Co., 515 U.S. 277 (1995)), is, absent a proper injury in fact and
circumstances suggestive of illegitimate exercises of authority by the Michigan Supreme
When Plaintiffs first raised the facial challenge to the courtesy provisions at a time when
a state grievance was pending, Defendants argued that abstention was required. This
Court agreed. Now that the proceeding is not pending, Defendants claim that Plaintiffs
lack standing to prospectively challenge the provisions because there is no pending
grievance or proceeding. At oral argument, Defendants were asked repeatedly if there
would ever be a situation where a plaintiff would possess the requisite standing to
facially challenge the courtesy provisions in a federal court . . . . Defendants’ response
[was] too limited and would likely cause issues concerning the existence of an actual
case or controversy to arise.
Dombrowski proves that, under a proper set of facts, a plaintiff alleging a violation of the federal
Constitution in a pending state grievance or other proceeding could have standing and that a federal court
would be required to intervene in the proceeding without abstaining. Indeed, the Supreme Court in
Dombrowski remanded the case to the district court and ordered it to determine the issues raised in the
complaint without abstaining. Dombrowski, 380 U.S. at 497-98. Further, 28 U.S.C. § 1257(a) authorizes
the Supreme Court to review a final judgment or decree rendered by the highest court of a state where the
validity of a state statute is drawn into question on the ground of its being repugnant to the Constitution
of the United States. In this case, federal intervention has simply not been justified. That is not to say,
however, that under an appropriate set of facts, federal court jurisdiction would not be proper.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 27
Court under the federal Constitution, a case that would “increase the friction between our
federal and state courts and improperly encroach on state jurisdiction.” Roumph, 211
F.3d at 968.
V.
We hold that plaintiffs lack standing to assert a facial challenge to MRPC 3.5(c)
and 6.5(a) because they have failed to demonstrate actual present harm or a significant
possibility of future harm based on a single, stipulated reprimand. Moreover, plaintiffs
have not articulated, with any degree of specificity, their intended speech and conduct
and have not sufficiently established a threat of future sanction under the narrow
construction of the challenged provisions by the Michigan Supreme Court. For the same
reasons, we conclude that the district court abused its discretion in entering declaratory
relief under the Declaratory Judgment Act, 28 U.S.C. § 2201(a).8
Accordingly, the judgment of the district court is vacated, and the case is
remanded to the United States District Court for the Eastern District of Michigan with
instructions to dismiss the complaint for lack of jurisdiction.
8
In view of our disposition, it is unnecessary for us to address the additional issues raised by
appellants.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 28
________________
DISSENT
________________
MERRITT, Circuit Judge, dissenting. Rule 3.5(c) of the Michigan Rules of
Professional Conduct provides that a lawyer shall not “engage in undignified or
discourteous conduct toward the tribunal.” Rule 6.5(a) provides that “a lawyer shall
treat with courtesy and respect all persons involved in the legal process.” No other
jurisdiction places such potentially sweeping restrictions on attorney speech.1 Plaintiffs
Geoffrey Fieger and Richard Steinberg brought suit under the Declaratory Judgment Act,
28 U.S.C. § 2201(a), seeking a declaration that these “courtesy and civility” provisions
are unconstitutionally vague and overbroad. The district court concluded that the suit
presented an actual controversy that would be appropriately resolved by issuing
declaratory relief. The majority now reverses both of those decisions. Because I believe
that the requirements for standing under the Declaratory Judgment Act require a
different result, I respectfully dissent.
The majority first errs by falsely claiming that these Rules are narrow and that
the Michigan Supreme Court has given the Rules an even narrower construction. The
majority opinion also completely fails to understand that the recent case of MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118 (2007), clearly establishes the proposition that, in
free-speech cases brought under the Declaratory Judgment Act, credible threats of
governmental suppression create standing for individuals who face a realistic danger of
prosecution.
1
The old version of the American Bar Association’s Model Rule of Professional Conduct 3.5
prohibited a lawyer “appearing in his professional capacity before a tribunal” from “engag[ing] in
undignified or discourteous conduct which is degrading to a tribunal.” The ABA subsequently changed
this Rule to provide that a lawyer shall not “engage in conduct intended to disrupt a tribunal.” Of the forty-
five jurisdictions that base their rules on the ABA Rules, only three others besides Michigan retain a
reference to “undignified or discourteous conduct,” and each of those three includes a further requirement
that the conduct be “degrading” or “disrupting” to the tribunal. See Grievance Adm’r v. Fieger, ADB #01-
055-GA at *6-13 (2004) (surveying other jurisdictions and concluding that Michigan’s Rule 3.5(c)
“appears to be unique” in its breadth).
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 29
I. The Challenged Rules
I begin with a brief discussion of the Rules in question, since their reach is
relevant to plaintiffs’ standing to challenge them. The majority repeatedly emphasizes
the importance of “the narrow construction” given to the challenged Rules by the
Michigan Supreme Court. This “narrow construction” purportedly undermines
plaintiffs’ ability to establish standing because plaintiffs have not alleged that they
“intend to make vulgar, crude, or personally abusive remarks about participants in
pending cases.” Supra at 13; see also id. (noting that “the narrow construction placed
on” the Rules is the backdrop against which the standing analysis is undertaken).
I find it impossible to read the Michigan Supreme Court’s construction of the
Rules as “narrow” in any significant way. The majority appears to read the opinion to
say that the Rules apply only to vulgar, crude, or personally abusive remarks. If that
were so, this would be a different case. But the Michigan Supreme Court merely said
that the Rules clearly apply to such remarks, without suggesting that they do not apply
elsewhere. In its discussion of vagueness, the Court avoided clarifying the Rules’
potential reach, noting that Fieger’s vagueness challenge “cannot be successfully
advanced here because there is no question that even the most casual reading of these
rules would put a person clearly on notice that the kind of language used by Mr. Fieger
would violate MRPC 3.5(c) and MRPC 6.5(a).” Grievance Adm’r v. Fieger, 719
N.W.2d 123, 139 (Mich. 2006). In addition to missing the very point of a vagueness
challenge, this passage is indicative of the lack of any narrowing construction in the
opinion — the Court says that the Rules clearly apply to certain speech, without
suggesting any other speech to which they do not apply. To be sure, the Court
emphasizes that the Rules do not prohibit all criticism of judges, instead governing only
“the form and manner of such criticism.” Id. at 144. But that merely raises the question
of what forms and manners of criticism are considered “undignified,” “discourteous,”
or lacking in “respect.” Comparing judges to Hitler and Goebbels evidently falls on the
wrong side of the line. But would it be permissible to vary the “form and manner” of
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 30
criticism, and say that the judges had “behaved dictatorially”? Saying that a judge is a
“jackass” appears to be impermissible (despite the fact that the word is a non-vulgar
name for a donkey). But would it be permissible to vary the “form and manner” and say
that he is a “stubborn idiot,” a “right-wing radical,” a “doctrinaire ideologue,” or “driven
by party politics”? Or, for that matter, to say that he is an incompetent jurist whose
presence on the bench is a disgrace? Nothing in the opinion suggests where the line
between permissible and impermissible form might lie. In sum, the Michigan Supreme
Court says that lawyers are free to criticize judges, but may only do so in a manner that
shows courtesy and respect. The vagueness — and potential reach — of this
requirement hardly needs further elaboration.
Not only did the Michigan Supreme Court fail to give the Rules a meaningful
limiting construction, it actually expanded the reach of the Rules in several key respects.
First, it held that the phrase “all persons involved in the legal process,” as used in Rule
6.5(a), includes judges, who therefore must be “treat[ed] with courtesy and respect.” If
there was any meaningful difference between a prohibition against “undignified or
discourteous conduct,” on the one hand (which arguably left some leeway for vigorous
criticism), and an affirmative duty to treat judges with “courtesy and respect,” on the
other (which seemingly leaves no such room for criticism), that difference has been
made moot, since both provisions now govern attorney conduct toward judges. Second,
the Court construed the phrase “toward the tribunal,” as used in Rule 3.5(c), to include
any statement made “with respect to” the tribunal. See id. at 137. This expansive
reading of the Rule, which had never previously been applied to an attorney’s public
comments, see Grievance Adm’r v. Fieger, ADB #01-055-GA (2004), means that any
public criticism of judges is now potentially subject to disciplinary action. Finally, in
its discussion of the Rules’ inevitably “flexible” enforcement standards, see Grievance
Adm’r, 719 N.W.2d at 255, the Court notes that the State’s interest in limiting attorney
speech is greater when cases are pending. From there, it adopts a technical definition
of the word “pending” to conclude that the State has a strong interest in vigorous
enforcement even after an appellate court has rendered its judgment, so long as the “time
for filing an application for leave to appeal to the Supreme Court,” which is now twenty-
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 31
one days, has not expired. Id. at 135-36. Thus, an attorney’s criticism of a recently
rendered appellate court decision is treated identically to an attorney’s criticism of the
court in an ongoing jury trial.2 This reasoning takes us far afield of the purpose of the
rule regarding pending cases, which is concerned with preventing unfairness to the
parties and disruption of the legal system. See, e.g., Terri R. Day, Speak No Evil: Legal
Ethics v. The First Amendment, 32 J. LEGAL PROF. 161 (2008) (explaining that the
“Supreme Court has held that attorneys’ First Amendment rights must be balanced
against litigants’ right to fair and impartial adjudications”).3
In sum, the Michigan Supreme Court’s construction of the challenged Rules
cannot accurately be described as “narrow.” The Court not only failed to limit or clarify
the language in any meaningful way, it held that the Rules apply in ways that they had
never done before, paving the way for more expansive enforcement in the future. It is
against this backdrop that plaintiffs’ standing should be evaluated.4
II. Standing
Standing to bring suit under the Declaratory Judgment Act is subject to different
requirements than standing to sue for damages or an injunction. The majority blurs these
requirements by demanding that plaintiffs demonstrate a pattern of disciplinary actions
so consistent that we can infer inevitable and imminent future harm. While this standard
2
The Court does not even stop there. It says that the Rules apply to all pending cases (giving that
term an expansive reading, as noted), but declines to say that Rules do not apply to non-pending cases.
See Grievance Adm’r, 719 N.W.2d at 136 (“It is also unnecessary for us to decide, and we do not decide
here, the limits our civility rules place on lawyers after a case has been completed.”).
3
As noted, supra note 1, it is instructive to compare Michigan Rule of Professional Conduct 3.5,
prohibiting “undignified or discourteous conduct toward the tribunal,” with the American Bar
Association’s Model Rule of Professional Conduct 3.5, which prohibits “conduct intended to disrupt a
tribunal.” As commentators have noted, “[i]f a lawyer takes action outside a courtroom setting, it is
virtually impossible to ‘disrupt’ a tribunal.” GEOFFREY C. HAZARD, JR., ET AL., THE LAW OF LAWYERING
§ 31.6, 31-8 (3d ed. 2004). Thus, Michigan appears to be unique in saying that its rules concerning
attorney speech towards a tribunal apply outside of the courtroom.
4
I also note in passing that this case presents an unusual concentration of power in one branch
of government: the Michigan Supreme Court in effect makes, enforces, and interprets the laws relating
to the criticism of its members. Basic separation-of-powers principles and common sense should cause
us to approach such laws with a healthy degree of skepticism.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 32
might be appropriate to a suit for injunctive relief, it is inappropriate to a suit for
declaratory relief.
In MedImmune, Inc. v. Genentech, Inc., the Supreme Court explained that, when
analyzing standing in declaratory-judgment actions, “‘the question in each case is
whether the facts alleged, under all circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.’” 549 U.S. at 127 (quoting
Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). There
seems to me to be little question that the free-speech controversy here (which requires
a straightforward assessment of the Rules’ facial validity) is substantial, definite, and
concrete, and that the parties have adverse legal interests. The only point of debate,
then, concerns whether the controversy is of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment. It bears emphasis that this test does not require
plaintiffs to violate the law and await actual prosecution: “[W]here threatened action by
government is concerned, we do not require a plaintiff to expose himself to liability
before bringing suit to challenge the basis for the threat — for example, the
constitutionality of a law threatened to be enforced. The plaintiff’s own action (or
inaction) in failing to violate the law eliminates the imminent threat of prosecution, but
nonetheless does not eliminate Article III jurisdiction.” Id. at 772.5 A controversy
possesses sufficient immediacy and reality if a plaintiff faces “a realistic danger” or
“credible threat” of the law being enforced against him. See Babbit v. United Farm
5
The Court in MedImmune drew on Steffel v. Thompson, 415 U.S. 452 (1974), a case in which
the plaintiff did not have to “proceed to distribute handbills and risk actual prosecution before he could
seek a declaratory judgment regarding the constitutionality of a state statute prohibiting such distribution,”
explaining:
As then-Justice Rehnquist put it in his concurrence, “the declaratory judgment procedure is an
alternative to pursuit of the arguably illegal activity.” [Steffel, 415 U.S.] at 480. In each of these
cases, the plaintiff had eliminated the imminent threat of harm by simply not doing what he claimed
the right to do . . . . That did not preclude subject-matter jurisdiction because the threat-eliminating
behavior was effectively coerced. See Terrace [v. Thompson, 263 U.S. 197, 215-16 (1923)]; Steffel,
[415 U.S.] at 459. The dilemma posed by that coercion — putting the challenger to the choice
between abandoning his rights or risking prosecution — is “a dilemma that it was the very purpose
of the Declaratory Judgment Act to ameliorate.” Abbott Laboratories v. Gardner, 387 U.S. 136, 152
(1967).
MedImmune, 549 U.S. at 129.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 33
Workers Nat’l Union, 442 U.S. 289, 298 (1979). This standard is met “when fear of
criminal prosecution under an allegedly unconstitutional statute is not imaginary or
wholly speculative” and a plaintiff has asserted that he intends to engage in behavior that
appears to be prohibited by the text of a vague law. Id. at 303. This is true even where
the challenged law has never been applied to the plaintiff and may not be in the future.
Id. at 302. Therefore, a plaintiff has standing to seek declaratory relief when he has
alleged an intention to engage in behavior that, if undertaken, would raise a realistic
danger of government prosecution.
Fieger has easily satisfied this requirement and thus has standing.6 He has
alleged that he intends to continue being an outspoken critic of the Michigan judiciary.
If history is any guide, much of that future criticism could very plausibly be described
as “discourteous,” putting him in realistic danger of prosecution. The fact that
disciplinary action has “only” been brought against him twice does not undermine
standing in this context, as the majority contends; it buttresses it.
It is also worth noting that the majority’s apparent demand for detailed
allegations about the sorts of decisions that Fieger will criticize and the specific language
that he will use is particularly inappropriate in a suit for a declaration concerning the
facial validity of the Rules. If plaintiffs had sought a declaration that certain specific
actions could not be punished under the Rules — that is, “a pre-application, as-applied
challenge,” Adult Video News Ass’n v. U.S. Dep’t of Justice, 71 F.3d 563, 567 (6th Cir.
1995) (emphasis omitted) — it would be appropriate to require that they allege the
behavior with a high degree of specificity and demonstrate the likelihood that they will
undertake that behavior in the future. But where they seek a declaration that the law, on
its face, is unconstitutionally vague and overbroad, what is the point of having plaintiffs’
standing turn on the specificity of their planned conduct? A facial challenge to the Rules
will be resolved by reference to the text of the Rules and any limiting constructions
Michigan courts have given them; the specific conduct that gave rise to the facial
6
Because Fieger, in my view, has standing, it is unnecessary to address whether Steinberg also
has standing.
No. 07-2213 Fieger v. Michigan Sup. Ct., et al. Page 34
challenge is of little relevance and should not be determinative of the existence of a case
or controversy.
Finally, I do not believe that my colleagues have given sufficient weight to the
District Court’s conclusions about the existence of a controversy and the appropriateness
of issuing declaratory relief. “[T]he existence of an actual controversy and the adequacy
of declaratory relief to resolve it are issues often presenting particular difficulty in
declaratory judgment actions, and it is to these issues that judicial discretion in such
actions is primarily directed.” Perez v. Ledesma, 401 U.S. 82, 123-24 (1971) (Brennan,
J., concurring in part and dissenting in part). As the Court recently reiterated, it is “more
consistent with the [Declaratory Judgment Act] . . . to vest district courts with discretion
in the first instance, because facts bearing on the usefulness of the declaratory judgment
remedy, and the fitness of the case for resolution, are peculiarly within their grasp.”
MedImmune, 549 U.S. at 136 (quotations omitted). The standing question here is not
close or subject to reasonable debate among lawyers who understand the law; but if it
were, we should give a strong version of deference to the District Court’s conclusion that
an actual controversy fit for judicial resolution exists.