Opinion
Case No. 4:00-CV-141.
November 24, 2000.
OPINION
On August 28, 2000, Plaintiffs, Annelore B. Norton ("Norton") and Lois Greiffendorf ("Greiffendorf"), filed this action against Defendants, Janet Reno, Attorney General of the United States, Michael H. Dettmer, United States Attorney for the Western District of Michigan, Barbara C. Lee ("Lee"), United States Marshal for the Western District of Michigan and Gerry Alexander ("Alexander"), Special Agent, Federal Bureau of Investigation, Kalamazoo, Michigan, all in their official capacities ("Defendants"). Plaintiffs seek declaratory and injunctive relief from enforcement of the "Freedom of Access to Clinic Entrances Act" ("FACE"), 18 U.S.C. § 248. A first non-violent physical obstruction offense under FACE carries the potential for up to a six month prison sentence and a $10,000 fine. See 18 U.S.C. § 248 (b).
FACE provides in relevant part that "Whoever (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services . . . shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c)." 18 U.S.C. § 248(a). "Reproductive health services" is defined in Section (e)(5) of FACE.
Plaintiffs allege seven claims for relief in their complaint. The first two claims challenge FACE as applied, and the other five present facial challenges to FACE. Plaintiffs' claims are as follows: first, that the threatened application of FACE violates Plaintiffs' and other parties' First Amendment right to free speech; second, that the threatened application of FACE violates Plaintiffs' and other parties' right to free association guaranteed by the First Amendment; third, that FACE is unconstitutionally overbroad in violation of the First Amendment; fourth, that FACE is unconstitutionally vague in violation of the First and Fifth Amendments; fifth, that FACE is a content and viewpoint based restriction of speech in violation of the First Amendment; sixth, that FACE violates the Fifth Amendment in denying equal protection of law; and seventh, that in enacting FACE Congress exceeded its power under the Commerce Clause. Now before the Court are Plaintiffs' motion for a preliminary injunction and Defendants' motion to dismiss Plaintiffs' Complaint. For the reasons set forth below, Plaintiffs' motion will be denied, and Defendants' motion will be granted.
Facts
This case arises out of the activities of Plaintiffs in protesting, praying and counseling on the sidewalks around the Planned Parenthood Clinic in Kalamazoo, Michigan ("Clinic"). Plaintiffs are two individuals who are active in protesting abortions and counseling women who may be seeking abortions. Plaintiffs claim that even though they do not intend to block access to any abortion clinic, federal law enforcement officials have threatened them with prosecution for what Plaintiffs believe to be the exercise of their First Amendment rights. Plaintiffs also claim that Congress does not have authority under the Commerce Clause to regulate access to what Plaintiffs see as a purely personal and local matter.
Norton is a nurse, and Greiffendorf is a teacher in a Roman Catholic school. As part of their activity, Plaintiffs pray and picket in front of the Clinic. Greiffendorf goes to the Clinic with her students to pray. As another part of their activity, Plaintiffs pass out literature and counsel people who are trying to enter or exit the Clinic's parking lot regarding Plaintiffs' views on abortion and the consequences of abortion.
Even though Plaintiffs claim that they have no intention of blocking the access to the Clinic, from time to time when Plaintiffs are engaged in their counseling activities, a vehicle might stop in the Clinic driveway to receive literature or to talk with one of the Plaintiffs. This could possibly block access to another vehicle attempting to enter the Clinic's parking area.
Plaintiffs have drawn the attention of federal law enforcement officials, specifically the United States Marshal's Service and the Federal Bureau of Investigation. At the suggestion of Lee, Norton and her attorney, John Lohrstorfer, agreed to meet with Lee to discuss possible ways to resolve any conflict relating to Norton's activities outside the Clinic. The parties met on June 1, 2000. At the meeting were Norton, Lohrstorfer, Lee, Alexander, Scott Mastellar, a Deputy with the U.S. Marshals Service, an intern from the U.S. Marshals Service, Meg Smilie of Planned Parenthood and Robert Lohrman, an attorney for Planned Parenthood. At this meeting, Defendants Lee and Alexander informed Norton of FACE and their intent to enforce FACE. The federal authorities told Norton that she would have no problem with FACE if she picketed, prayed and counseled across the street from the Clinic. The law enforcement agents were vague about what they would consider enough evidence to assert a violation of FACE. For example, if a vehicle stopped in Planned Parenthood's driveway to receive literature from one of the Plaintiffs, would that, by itself, constitute a violation of FACE? Or, would a violation occur if one person stopped in a car to receive literature and inadvertently blocked another driver wanting to use the driveway?
Plaintiff Greiffendorf did not attend the June 1, 2000 meeting, but learned what had been said in that meeting, and also read a letter dated June 2, 2000, to Mr. Lohrstorfer from Defendants Lee and Alexander. This letter was meant to "address the potential violation of the FACE statute as it applied to the current activities [of Plaintiffs]"; it stated that "[d]ue to the fact that there is a limited public driveway easement, . . . they [sidewalk counselors] will need to communicate with individuals visiting the clinic at some other point — either across the street or at some other area where they are not blocking access to the clinic." (Letter from Lee and Alexander to Lohrstorfer of 6/2/2000 at 1, Defs.' Mot. Dis. Compl. Ex. 3).
While Greiffendorf had previously engaged in sidewalk prayer, picketing and counseling, at times accompanied by her students, subsequent to hearing about the meeting and reading the letter she decided not to return to the sidewalks in front of the Clinic for fear, she claims, of her and her students being arrested and convicted under FACE.
Norton was not as easily dissuaded. On or about June 19, 2000, Norton traveled to the Clinic and prayed on the sidewalk. She did, however, attempt to stay approximately thirty feet from the driveway, so as to avoid stopping cars. In spite of the fact that the Clinic has posted a sign in the driveway which reads, "For Traffic Safety Do Not Stop In Drive, Persons Outside Gate Are Not Employees of Planned Parenthood," and in spite of Norton's distance from the driveway, a car stopped in the driveway and its driver called out to Norton. At that time, an employee of the Clinic drove up behind the stopped car, and the driver of the second car began honking her horn. In fear of being arrested for a FACE violation, Norton signaled the first driver to go across the street to speak with her. Apparently on the same day, another such incident occurred, but this time Norton recognized the driver who had motioned for her to approach the car as an employee of the Clinic, and so, fearing that the driver was attempting to entrap her into a violation of FACE, Norton turned and walked away from the car. Following these incidents, Norton left the Clinic and has not returned. Norton claims that she is afraid that any occurrence such as what happened on her last visit to the Clinic could result in her arrest and conviction for violating FACE.
Analysis
Defendants move for dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Court will first examine Defendants' motion to dismiss under Rule 12(b)(6), as applied to Counts 3-7 of Plaintiffs' Complaint (Plaintiffs' facial challenges to FACE). Finding that FACE is constitutional, the Court will grant Defendants' motion on Counts 3-7 because those counts fail to state a claim. The Court will then examine Defendants' motion to dismiss under Rule 12(b)(1) as regards Counts 1 and 2. As to those counts, the Court will grant Defendants' motion on the grounds that these claims are not currently ripe. Alternatively, the Court will exercise its discretion and decline to decide Counts 1 and 2 under the Declaratory Judgment Act.
I. Defendants' Motion to Dismiss as to Counts 3-7
Defendants argue that Plaintiffs' Complaint should be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The moving party has the burden of proving that no claim exists. Although a complaint is to be liberally construed, it is still necessary that the complaint contain more than bare assertions of legal conclusions. See Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993) (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). All factual allegations in the complaint must be presumed to be true, and reasonable inferences must be made in favor of the non-moving party. See 2A James W. Moore,Moore's Federal Practice, ¶ 12.34[1][b] (3d ed. 1997). The Court need not, however, accept unwarranted factual inferences. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984) (citingConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957)).
Plaintiffs' claims in Counts 3-7, which make facial challenges to FACE, are currently ripe for review. See Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995). Cheffer involved a facial challenge to FACE. The plaintiffs in that case engaged in trying to persuade women not to seek abortions, distributed literature, orally protested, and engaged in sidewalk counseling. Like the instant Plaintiffs, the Cheffer plaintiffs alleged that their First Amendment rights had been "chilled" because they feared punishment under FACE for their expressive activity in opposition to abortion. Like the instant Plaintiffs, the Cheffer plaintiffs did not assert that the exercise of their religion required them to physically obstruct abortion clinic entrances. The Eleventh Circuit found that theCheffer plaintiffs' Eighth Amendment claim (cruel and unusual punishment and excessive fines) was not ripe for adjudication but also found that their First Amendment claims (free exercise and free expression) were ripe. The court noted that "the doctrine of ripeness is more loosely applied in the First Amendment context. Appellants' First Amendment claims allege that the Act currently `chills' specific protected expressive activities and, thus, present sufficiently concrete and immediate questions for review." Id. at 1523 n. 12 (citation omitted). The instant facts fall squarely under the court's ruling in Cheffer.
As to the merits of Plaintiffs' challenges to FACE on Counts 3-7, United States Courts of Appeals considering FACE have uniformly upheld it against the type of constitutional challenges Plaintiffs raise here. These courts have held, and this Court agrees that, FACE is content neutral and is a restriction on the time, place and manner of speech that is "narrowly tailored to serve a significant governmental interest," and allows ample alternative means of communication, as is required of content-neutral restrictions on the time, manner, and place of speech under Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753 (1989), and of limitations on expressive conduct under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968). See United States v. Gregg, 226 F.3d 253, 267-68 (3d Cir. 2000); United States v. Weslin, 156 F.3d 292, 296-98 (2d Cir. 1998) (per curiam); Terry v. Reno, 101 F.3d 1412, 1418-21 (D.C. Cir. 1996); United States v. Dinwiddie, 76 F.3d 913, 921-24 (8th Cir. 1996); Cheffer, 55 F.3d at 1521-22;American Life League Inc. v. Reno, 47 F.3d 642, 648-52 (4th Cir. 1995).See also Hill v. Colorado, 120 S.Ct. 2480, 2491-97 (2000) (holding that a Colorado law prohibiting anyone within 100 feet of the entrance to a health-care facility from knowingly approaching within eight feet of another person, without the other person's consent, for such purposes as leafleting, protesting, or counseling with that person, is a valid time, place and manner restriction on speech under Ward). Plaintiffs have no constitutional right to interfere with access to the Clinic. See, e.g., American Life League v. Reno, 47 F.3d at 648 (citing Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 1339 (1968)); Dinwiddie, 76 F.3d at 921-22 (citing Cameron v. Johnson); Terry v. Reno, 101 F.3d at 1418-19 ("Consistent with the First Amendment, the Government may also punish physical obstruction that makes passage to or from a reproductive health facility impossible or unreasonably hazardous") (citing Cameron v. Johnson). Moreover, FACE is not overbroad. See United States v. Bird, 124 F.3d 667, 683 (5th Cir. 1997); Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1521-22; American Life League, 47 F.3d at 652-53; Riely v. Reno, 860 F. Supp. 693, 704 (D.Ariz. 1994); see also Hill v. Colorado, 120 S.Ct. at 2497-98 (Colorado statute is not overbroad). It is not vague.See Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1521-22; American Life League, 47 F.3d at 652-53; Riely, 860 F. Supp. at 705; see also Hill v. Colorado, 120 S.Ct. at 2498-99 (Colorado statute is not vague). It does not violate the Equal Protection Clause. See Terry, 101 F.3d at 1422. Finally, it is within Congress' commerce power. See Gregg, 226 F.3d at 261-67; Bird, 124 F.3d at 672-82; Terry, 101 F.3d at 1415-18; United States v. Soderna, 82 F.3d 1370, 1373-74 (7th Cir. 1996); Dinwiddie, 76 F.3d at 919-21; United States v. Wilson, 73 F.3d 675, 679-89 (7th Cir. 1995); Cheffer, 55 F.3d at 1519-21.
Of the cases cited above as upholding FACE as a valid exercise of the commerce power, only Gregg was decided after the Supreme Court's decision in United States v. Morrison, 120 S.Ct. 1740 (2000). In Morrison, the Court made clear that its decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624(1995), striking down the Gun-Free School Zones Act of 1990 as exceeding Congress' commerce power, was not an isolated, confined case but rather one with potentially substantial impact on all Commerce Clause analyses. In Morrison, the Court struck down a portion of the Violence Against Women Act, 42 U.S.C. § 13981(VAWA), as exceeding Congress' commerce power. Congress may regulate under its commerce power: (1) channels of interstate commerce, (2) instrumentalities of or persons or things in interstate commerce, and (3) activities substantially affecting interstate commerce. See Morrison, 120 S.Ct. at 1749. However, Morrison dealt only with the third category of activity, see id., so the only possible change to be worked in the Commerce Clause analysis of FACE afterMorrison is in activities substantially affecting interstate commerce.
Morrison, in striking down a portion of VAWA, stated, "[w]e accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local." Id. at 1754. This points out the difference between the conduct regulated in Morrison and the conduct regulated in the instant case. Unlike the conduct sought to be proscribed in VAWA, the conduct proscribed under FACE is not "noneconomic." As the Court pointed out in Morrison, allowing Congress to regulate crime against women on the basis of the secondary effects such crime has on the economy (e.g. "`deterring potential victims from traveling interstate, from engaging in employment in interstate business, . . . by diminishing national productivity.'" Id. at 1752 (quoting H.R. Conf. Rep. No. 103-711, at 385, U.S. Code Cong. Admin. News 1994, pp. 1803, 1853)) would allow Congress to regulate criminal law in general, as well as other areas of law traditionally reserved to the states, such as family law, and would thereby possibly "completely obliterate the Constitution's distinction between national and local authority." Id. at 1752-53. Allowing Congress to regulate access to reproductive health services, however, provides no threat of obliterating this distinction in the Constitution. Reproductive health services are, as Congress noted in its findings in regards to FACE, businesses which engage in interstate commerce at numerous levels. The doctors who perform abortions often travel interstate in the performance of their duties, as do patients and the goods and supplies used in abortion clinics. See American Life League, 47 F.3d at 647 (citing Congressional findings on these issues). Regulating commercial facilities which engage in interstate commerce is quite different from regulating crime against another individual on the basis of gender. Reproductive health facilities have a direct and substantial affect on interstate commerce. Allowing Congress to regulate these crimes does not require a "but-for causal chain from the initial occurrence of . . . crime . . . to every attenuated effect upon interstate commerce," Morrison, 120 S.Ct. at 1752, but is based on direct and substantial effects on interstate commerce. See, e.g., United States v. Gregg, 226 F.3d at 263-64;Dinwiddie, 76 F.3d at 921; American Life League v. Reno, 47 F.3d at 647. Allowing Congress to enact FACE does not threaten to "obliterate the Constitution's distinction between national and local authority,"Morrison, 120 S.Ct. at 1752, and is, therefore, within Congress' commerce power.
United States v. Faasse, 227 F.3d 660 (6th Cir. 2000), struck down a portion of the Child Support Recovery Act of 1992 (CSRA) as exceeding Congress' commerce power. In its analysis of the third prong of activities which Congress may regulate under its commerce power, activities substantially affecting interstate commerce, the court noted that "[t]he activity criminalized by the CSRA is not commercial in nature," due to its lack of reciprocity — "the mutual exchange of value motivated by economic self-interest." Id. at 669-70. In the instant case, however, as the Court has mentioned, clinics of the type at issue here are engaged in interstate commerce, and their obligations, unlike the obligations in Faasse, are in fact reciprocal. Their obligations are not based on a state court order, but instead on mutual promises and bargains by suppliers, doctors, patients, and other employees. This type of scenario was lacking in Faasse, see id. at 670 ("The failure to obey a state court order, of course, lacks this essential feature of reciprocity"), but is present in the instant case. Accordingly, Faasse provides the Plaintiffs with no additional support for the argument that FACE exceeds Congress' commerce power.
FACE is constitutional. As to Plaintiffs' Counts 3-7, Defendants' motion will be granted.
II. Defendants' Motion to Dismiss as to Counts 1 and 2
Pursuant to Fed.R.Civ.P. 12(b)(1), this Court must dismiss a claim if the Court lacks jurisdiction over the subject matter. A court lacks jurisdiction over the subject matter if there is no actual case or controversy under art. III, § 2 of the Constitution. See Bigelow v. Michigan Dep't of Nat. Resources, 970 F.2d 154, 160 (6th Cir. 1992) (equating dismissal on ripeness grounds to lack of subject matter jurisdiction). In addition, this Court has discretion on whether to hear a claim for a declaratory judgment pursuant to 28 U.S.C. § 2201(a).
Defendants claim that there is no case or controversy because Plaintiffs' claim is not "ripe" for adjudication. Three factors should be taken into account in determining whether a pre-enforcement challenge to a statute is ripe. These factors are "the hardship to the parties if judicial review is denied at the pre-enforcement stage, the likelihood that the injury alleged by the plaintiff will ever come to pass, and the fitness of the case for judicial resolution at this stage."Peoples Rights Organization, Inc. v. City of Columbus, 152 F.3d 522, 529 (6th Cir. 1998); see also Sam Ali, Inc. v. Ohio Dep't of Liquor Control, 158 F.3d 397, 400 (6th Cir. 1998) (same). Plaintiffs' facial challenges met these factors, while their as applied challenges do not.
The question of "ripeness" is one element of determining whether there is an actual case or controversy between the parties.
As to Counts 1 and 2, Peoples Rights Organization is distinguished from the instant case in that the plaintiffs in Peoples Rights Organization claimed that the statutory definition of "assault rifle" was vague and they did not want to unknowingly violate the ordinance. In the instant case, however, the definition of what is illegal is not vague. Plaintiffs do not even claim that it is vague. The problem is in determining what specific acts of Plaintiffs will lead reasonable law enforcement officers to conclude that a Plaintiff had the specific intent required to violate the statute.
FACE is a specific intent statute. Specific intent cannot be ascertained by a clear statutory definition or by reading someone's mind. It can only be ascertained by considering all of the surrounding facts and circumstances. Plaintiffs say that they do not intend to block access, and the Defendants refuse to state what would be sufficient evidence to charge Plaintiffs with blocking access. Thus, to a certain extent, the parties are engaging the Court in "abstract disagreements" which Peoples Rights Organization recognizes are not ripe for decision.See Peoples Rights Org., 152 F.3d at 527. The problem is that this Court is left to speculate upon what specific acts of Plaintiffs might cause Defendants to arrest Plaintiffs. For example, if Norton were praying 30 feet from the driveway and an employee of Planned Parenthood stopped her vehicle to entice Norton into a conversation, and the vehicle blocked another vehicle trying to enter the Clinic's parking lot, in this Court's judgment, Norton would not intentionally be blocking access but the Planned Parenthood employee could be intentionally blocking access if the employee did not move on. Likewise, this Court does not believe that the number of individual vehicles that stop for "counseling" on the way into the Clinic's property is determinative of any intent to block access so long as no access is actually blocked, no one is intimidated, etc. But it could possibly have some relevance regarding "intent" in light of other facts which are only speculative at this time. On the other hand, standing in the Clinic's driveway or entrance to stop a vehicle or pedestrian from entering the Clinic's property would be intentionally blocking access in violation of FACE. There is a wide range of activity in between these hypotheticals, but the Court would only be speculating upon whether these activities would cause reasonable law enforcement officers to arrest anyone.
Because of the specific intent requirement, Plaintiffs do not meet any prong of the Sixth Circuit's test for pre-enforcement ripeness on their as applied challenges.
Plaintiffs face no hardship. They have no constitutional right to intentionally block access to the Clinic, and this Court cannot grant Plaintiffs absolute immunity from FACE for future actions, even if those actions accord exactly with their past actions, since an act that may not evidence intent on one occasion may be evidence of intent on another occasion simply because surrounding circumstances change. Plaintiffs can counsel, pray, and picket so long as they do not violate FACE.
The second ripeness factor to be considered is whether the harm Plaintiffs allege may come to pass. When considering this factor, it must be recognized that "[t]he more that the question presented is purely one of law, [as are Plaintiffs' facial challenges] and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice versa." Artway v. Att'y Gen. of N.J., 81 F.3d 1235, 1249 (3rd Cir. 1996) (citing Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-35 (1978) and Zemel v. Rusk, 381 U.S. 1, 20, 85 S.Ct. 1271, 1282 (1965)). Plaintiffs' facial challenges are questions of law, while their as applied challenges are factual. The as applied challenges hinge on the vagaries of determining Plaintiffs' intent in the instant case, while the facial challenges hinge instead on the language of the statute, which is clear and unambiguous. This makes it quite uncertain whether as applied to Counts 1 and 2 any of the harms feared by Plaintiffs will come to pass.
In addition, the factual record as to Plaintiffs' intent is not developed enough for this Court to rule on Plaintiffs' Counts 1 and 2. In Woodall v. Reno, 47 F.3d 656 (4th Cir. 1995), the court in declining to hear a challenge to § 3(c)(2)-(3) of FACE (now codified at U.S.C. § 248(c)(2) and (3)) stated: "[t]he record before us is insufficient to present the . . . issue in a `clean-cut and concrete form.'" Id. at 658 (quoting Renne v. Geary, 501 U.S. 312, 322, 111 S.Ct. 2331, 2339 (1991)). The factual record in this case is similarly deficient. There remains potential ambiguity as to Plaintiffs' intent, and this ambiguity would be for a jury to sort out in a trial, not for this Court to sort out in a pre-enforcement review. Plaintiffs' intent is a question of fact, not law, and this Court will not insinuate itself into what is rightly the province of a jury in a different case.
Even if the Court concluded that Plaintiffs' claims in Counts 1 and 2 were ripe, the Court would decline to exercise its discretion under the Declaratory Judgment Act. "[B]ecause declaratory and injunctive relief is discretionary, there is plenty of room for courts to deny improvident requests even if there is an otherwise ripe case and a realistic threat of prosecution." New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000) (citing Reno v. Catholic Soc. Servs., 509 U.S. 43, 57, 113 S.Ct. 2485, 2495 (1993)) (citation omitted). On the issue of discretion, the Sixth Circuit has held that the following considerations should guide a district court in determining whether a declaratory ruling is appropriate:
"The two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed."Grand Trunk W. R.R. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) (quoting E. Borchard, Declaratory Judgments 299 (2d ed. 1941)). Grand Trunk lists the following five factors that courts should consider in determining whether a declaratory judgment will yield these results:
(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.
The third, fourth, and fifth factors have no particular relevance to this case. However, the Court concludes that the first and second factors strongly counsel against this Court issuing declaratory relief. The Court's reasoning for both factors stems from the same concerns giving rise to problems with ripeness: the wide range of undefined activity. As mentioned above, at one end of the spectrum, certain activity would not be proscribed by FACE, while at the other end certain activity would clearly fall under FACE's coverage. Due to FACE's specific intent requirement, certain activity that, in isolation, might not appear to violate FACE, may be found to do so when considered in light of other circumstances which are too numerous and speculative to enable this Court to grant Plaintiffs any meaningful relief. Thus, this Court could not issue relief that would settle the controversy and serve a useful purpose in delineating the boundaries of lawful activity in which Plaintiffs could engage under FACE.
Counts 1 and 2 will be dismissed.
III. Plaintiffs' Motion for a Preliminary Injunction
Having concluded that dismissal of all Counts is warranted, Plaintiffs' motion for a preliminary injunction must be denied.
Conclusion
For the reasons stated in this Opinion, Defendants' motion will be granted, and Plaintiffs' motion will be denied.
An Order consistent with this Opinion will issue.
ORDER
In accordance with the Opinion filed on this date,IT IS HEREBY ORDERED that Plaintiffs' Motion For Preliminary Injunction (docket no. 3) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion To Dismiss Plaintiffs' Complaint (docket no. 15) is GRANTED.
ALTERNATIVELY, IT IS FURTHER ORDERED that this Court declines to exercise its discretion to hear Counts 1 and 2 under the Declaratory Judgment Act. 28 U.S.C. § 2201(a).
This case is closed.