                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                        File Name: 09a0286a.06

                  UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                  X
                                                   -
 KAREN WAESCHLE, individually and on

                              Plaintiff-Appellee, --
 behalf of others similarly situated,

                                                   -
                                                                    No. 08-2228

                                                   ,
                                                    >
                                                   -
             v.

 LJUBISA J. DRAGOVIC, individually and in his -
                                                   -
                                                   -
 official capacity as Medical Examiner of
 Oakland County, Michigan, and OAKLAND             -
                                                   -
                                                   -
 COUNTY, MICHIGAN, a municipal
                                                  N
 corporation,
                        Defendants-Appellants.

                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                      No. 08-10393—Victoria A. Roberts, District Judge.
                                       Argued: June 16, 2009
                               Decided and Filed: August 14, 2009
                                                                                                      *
    Before: GILMAN and McKEAGUE, Circuit Judges; BARRETT, District Judge.

                                        _________________

                                              COUNSEL
ARGUED: William H. Horton, GIARMARCO, MULLINS & HORTON, P.C., Troy,
Michigan, for Appellants. Patrick J. Perotti, DWORKEN BERNSTEIN CO., LPA,
Painesville, Ohio, for Appellee. Steven M. Jentzen, STEVEN M. JENTZEN, P.C.,
Ypsilanti, Michigan, for Amici Curiae. ON BRIEF: William H. Horton, Elizabeth A.
Favaro, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, Keith J.
Lerminiaux, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan,
for Appellants. Patrick J. Perotti, DWORKEN BERNSTEIN CO., LPA, Painesville,
Ohio, John Henry Metz, LAW OFFICE, Cincinnati, Ohio, for Appellee. Steven M.
Jentzen, STEVEN M. JENTZEN, P.C., Ypsilanti, Michigan, B. Eric Restuccia, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Daniel A. Ophoff,



         *
           The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio,
sitting by designation.


                                                     1
No. 08-2228         Waeschle v. Dragovic et al.                                 Page 2


KENT COUNTY, Grand Rapids, Michigan, Joanne G. Swanson, KERR, RUSSELL
AND WEBER, PLC, Detroit, Michigan, for Amici Curiae.
                             ________________________

                                AMENDED OPINION
                             ________________________

       RONALD LEE GILMAN, Circuit Judge. After Karen Waeschle’s mother died,
an autopsy was performed to determine the cause of death. When the mother’s remains
were returned to Waeschle for cremation, she was not informed that the brain had been
removed during the autopsy and was still being studied by the Medical Examiner.
Waeschle sued Oakland County and Ljubisa J. Dragovic, the Oakland County Medical
Examiner (Dragovic or the Medical Examiner), after discovering that her mother’s brain
had been incinerated as medical waste once the autopsy was completed. The Medical
Examiner, Waeschle maintains, violated the Due Process Clause of the Fourteenth
Amendment by depriving her of the right to dispose of her mother’s brain.

       Oakland County and Dragovic filed for summary judgment, arguing that
Waeschle had no constitutionally protected property right to possess her deceased
mother’s brain because it had been removed for forensic examination. Dragovic also
asserted a qualified-immunity defense. In the alternative, the County and Dragovic
requested that the district court certify to the Michigan Supreme Court the question of
whether Michigan law gives Waeschle a property interest in her deceased mother’s brain
for the purpose of burial or cremation.

       For the reasons set forth below, we REVERSE the portion of the district court’s
judgment denying Dragovic’s qualified-immunity defense, and REMAND the case with
instructions to grant his motion for summary judgment with respect to Waeschle’s
individual-capacity claim against him. We also REVERSE the judgment of the district
court denying Oakland County’s and Dragovic’s motion to certify the question of state
law to the Michigan Supreme Court, and REMAND the case with instructions to certify
the question and conduct such further proceedings as are necessary for the proper
disposition of this case.
No. 08-2228        Waeschle v. Dragovic et al.                                   Page 3


                                 I. BACKGROUND

A.     Factual background

       Karen Waeschle’s 88-year old mother, Katherine R. Weins, was a resident of a
nursing home in West Bloomfield, Michigan. In August 2006, she fell and hit her head.
Weins was taken to a hospital, where she died two weeks later. Waeschle suspected that
abuse or neglect caused the fall. To investigate, the West Bloomfield Township Police
Department requested that an autopsy be performed on Weins’s body. Waeschle did not
challenge the request.

        Dr. Ruben Ortiz-Reyes was the Deputy Oakland County Medical Examiner who
conducted the autopsy. This required Dr. Ortiz-Reyes to remove and examine various
organs, including Weins’s brain, for clues regarding the cause of her death. To examine
a brain, it must be soaked in a formaldehyde-like solution until it becomes stiff enough
to dissect. The soaking process normally takes 10 to 14 days. With the exception of the
brain, the other organs that Dr. Ortiz-Reyes examined were placed back into the body.

       When Weins’s body (minus the brain) was made available to Waschle, the latter
cremated the remains. Waeschle disposed of her mother’s body without knowing that
the brain was not included. The Medical Examiner failed to notify Waeschle that her
mother’s body was being returned without the brain or that the Medical Examiner
planned to incinerate it once the examination of that organ was completed.

       Several months later, after disposing of her mother’s body, Waeschle met with
the Deputy Medical Examiner and was provided a copy of the autopsy report. At that
time, Waeschle learned that her mother’s brain had been incinerated as medical waste
without her consent. This litigation followed.

B.     Procedural background

       As amended, Waeschle’s complaint alleged that the Medical Examiner violated
Waeschle’s Fourteenth Amendment right to due process by not returning her mother’s
brain for disposal after the autopsy of that organ was completed. Waeschle also claimed
No. 08-2228        Waeschle v. Dragovic et al.                                      Page 4


that Dragovic negligently and intentionally inflicted emotional distress on her in
violation of state law. In June 2008, the Medical Examiner filed a motion for summary
judgment on the due process claim based upon the defense of qualified immunity. He
also filed a motion to dismiss the state-law causes of action. In the alternative, Dragovic
urged the district court to certify the state-law issues to the Michigan Supreme Court.

       The district court dismissed the state-law claims. As for the due process claim,
the court found that Waeschle had established that (1) she had a quasi-property interest
in her mother’s brain that was protected under the United States Constitution, and (2) the
Medical Examiner deprived her of that interest while acting under color of state law.
The court also found that Dragovic was not entitled to qualified immunity because the
quasi-property interest was “clearly established” and because the Medical Examiner
“reasonably should have known” that he was violating Waeschle’s Fourteenth
Amendment right.

                                    II. ANALYSIS

A.     Standard of review

       This appeal involves the denial of a qualified-immunity claim, which was set
forth in Dragovic’s motion for summary judgment. “We review a district court’s denial
of qualified immunity de novo.” Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir. 1999).
Summary judgment is proper where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
considering a motion for summary judgment, the district court must construe all
reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
No. 08-2228         Waeschle v. Dragovic et al.                                         Page 5


B.      Section 1983 and the qualified-immunity framework

        Section 1983 serves as a vehicle to obtain damages caused by persons acting
under color of state law whose conduct violates the U.S. Constitution or federal laws.
McQueen v. Beecher Comty. Schs., 433 F.3d 460, 463 (6th Cir. 2006). “A law
enforcement officer’s key defense to a § 1983 action is encapsulated in the concept of
qualified immunity.” Drogosch v. Metcalf, 557 F.3d 372, 377 (6th Cir. 2009). “The
doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 129 S. Ct. 808, 815 (2009) (citation and internal quotation marks omitted).

        Until recently, federal courts were required to conduct the qualified-immunity
analysis using the two-step sequential inquiry set forth in Saucier v. Katz, 533 U.S. 194
(2001). The first step required courts to determine “whether the facts that a plaintiff has
alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 129
S. Ct. at 816 (citations omitted). And

        if the plaintiff has satisfied this first step, the court must decide whether
        the right at issue was “clearly established” at the time of defendant’s
        alleged misconduct. Qualified immunity is applicable unless the
        official’s conduct violated a clearly established constitutional right.
Id. (citation omitted).

        In Pearson, however, the Supreme Court held that the sequential Saucier
protocol was no longer mandatory. Id. at 818. The Court reasoned that

        [t]he procedure sometimes results in a substantial expenditure of scarce
        judicial resources on difficult questions that have no effect on the
        outcome of the case. There are cases in which it is plain that a
        constitutional right is not clearly established but far from obvious
        whether in fact there is such a right.
Id.
No. 08-2228        Waeschle v. Dragovic et al.                                        Page 6


       Our qualified-immunity analysis that follows does not resolve the merits of
Waeschle’s constitutional claim. Doing so is unnecessary because, as will be shown,
Waeschle’s purported constitutional right is not clearly established.

C.     Clearly established constitutional rights

       The “clearly established” prong of the two-step Saucier analysis is particularly
important for the present case. This court has clarified that

       [f]or a right to be “clearly established,” the contours of the right must be
       sufficiently clear that a reasonable official would understand that his or
       her conduct violates that right. The unlawfulness of the official or
       employee’s conduct must be apparent in light of pre-existing law.
Durham v. Nu’Man, 97 F.3d 862, 866 (6th Cir. 1996). “A right is not considered clearly
established unless it has been authoritatively decided by the United States Supreme
Court, the Court of Appeals, or the highest court of the state in which the alleged
constitutional violation occurred.” Id.

       Waeschle complains that Dragovic violated her right to dispose of her mother’s
brain when he did not give her the opportunity to recover it for the purpose of burial or
cremation. But whether Waeschle has this right under state law is far from clear. Before
explaining why, we will set forth the framework governing the analysis of procedural
due process claims to provide further context for the claim at stake in this appeal.

       1.      Due process framework

       The Due Process Clause of the Fourteenth Amendment provides that no State
shall “deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “In order to establish a procedural due process claim, a plaintiff
must show that (1) he had a life, liberty, or property interest protected by the Due
Process Clause; (2) he was deprived of this protected interest; and (3) the state did not
afford him adequate procedural rights prior to depriving him of the property interest.”
Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2007) (citation
omitted).
No. 08-2228         Waeschle v. Dragovic et al.                                      Page 7


        This appeal concerns the question of whether Waeschle has a constitutionally
protected property interest under the first element listed above. “Property interests are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law—rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.” Id. (quoting
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (internal quotation marks omitted)).

        Although property rights are principally created by state law, “whether a
substantive interest created by the state rises to the level of a constitutionally protected
property interest is a question of federal constitutional law.”      Whaley v. County of
Tuscola, 58 F.3d 1111, 1114 (6th Cir. 1995). “Property interests protected by the due
process clause must be more than abstract desires or attractions to a benefit. The due
process clause only protects those interests to which one has a legitimate claim of
entitlement.” Brotherton v. City of Cleveland, 923 F.2d 477, 480 (6th Cir. 1991)
(citations and internal quotation marks omitted). In the next subsection, we address the
issue of whether Dragovic deprived Waeschle of a clearly established, constitutionally
protected property right to her mother’s brain without due process of law.

        2.      White’s claimed property right is not clearly established

        Waeschle cites two cases from this court in support of her claim that she has a
clearly established property right to her mother’s brain: Brotherton v. Cleveland, 923
F.2d 477 (6th Cir. 1991), and Whaley v. County of Tuscola, 58 F.3d 1111, 1117 (6th Cir.
1995). Each of these cases involves the removal of corneas from dead bodies without
the authorization of the decedent’s next of kin. Because the court in Whaley considered
itself bound by Brotherton, we will discuss the cases in chronological order.

        In Brotherton, the plaintiff’s husband was discovered in his car without a pulse.
He was taken to a hospital in Cincinnati, Ohio, where he was declared dead on arrival.
The plaintiff declined to donate her husband’s organs. Because the death might have
been a suicide, the hospital transferred the body to the county coroner’s office for an
autopsy. After the autopsy was completed, the coroner permitted the removal of the
decedent’s corneas for storage in an eye bank. The hospital had failed to inform the
No. 08-2228        Waeschle v. Dragovic et al.                                        Page 8


coroner that the plaintiff did not want her husband’s body parts removed for donation.
Nor did the coroner ask whether there were any such objections before allowing the
removal of the corneas. In fact, an Ohio statute “permitted a coroner to remove the
corneas of autopsy subjects without consent, provided that the coroner has no knowledge
of an objection by the decedent, the decedent’s spouse, or, if there is no spouse, the next
of kin, the guardian, or the person authorized to dispose of the body.” Brotherton, 923
F.2d at 478 (citing Ohio Rev. Code § 2108.60).

       The plaintiff in Brotherton sued the county coroner under 42 U.S.C. § 1983,
alleging that she was deprived of her property rights in violation of the Due Process
Clause because her husband’s corneas had been removed without her consent. Id. at
478-79. Although the district court dismissed the complaint for failing to state a claim,
this court reversed, holding that “the aggregate of rights granted by the state of Ohio to
[the plaintiff] rises to the level of a legitimate claim of entitlement in [the decedent’s]
body, including his corneas, protected by the due process clause of the fourteenth
amendment.” Id. at 482 (internal quotation marks omitted).

       In reaching this conclusion, the Brotherton court impliedly conceded that the
widow’s rights to her husband’s dead body were quite limited. The court acknowledged,
for example, that Ohio courts had expressly declined to recognize that the next of kin
have vested property rights in the bodies of their deceased relatives. Id. at 480 (citing
Carney v. Knollwood Cemetery Ass’n, 514 N.E.2d 430, 434-35 (Ohio Ct. App. 1986)).
On the other hand, the court noted that “property” is traditionally conceptualized as a
bundle of rights, including “the rights to possess, to use, to exclude, to profit, and to
dispose.” Id. at 481. Moreover, there was little doubt that Ohio law afforded the next
of kin at least some of these rights with respect to their relative’s body. See id.

       The court in Brotherton emphasized that the plaintiff had the right under Ohio
law to possess her husband’s body for the limited purpose of conducting a burial or other
lawful disposition. Id. at 482. Another right of the next of kin is to make an anatomical
gift of their relatives’ organs. See id. at 478 (“The hospital asked [the plaintiff] to
consider making an anatomical gift; she declined . . . .”). Brotherton concluded that
No. 08-2228         Waeschle v. Dragovic et al.                                      Page 9


these limited rights, even though they were not labeled property rights by the Ohio
courts, formed the basis of a constitutionally protected property interest in the decedent’s
body, including the corneas. Id.

        Whaley involved similar facts. Two Michigan counties hired a pathologist to
conduct autopsies on a contractual basis. The counties entered into an agreement
pursuant to which the pathologist’s assistant was allowed to remove a decedent’s corneas
without the consent of the next of kin. In return, the pathologist’s assistant, who stood
to profit from selling the corneas, agreed to bear “all the counties’ expenses in
performing the autopsies whenever corneas were removed, and half those expenses when
they were not.” Whaley, 58 F.3d at 1113.

        Once this cornea-removal practice was discovered, a class of plaintiffs sued the
counties, alleging that “they were deprived of their Fourteenth Amendment right to
procedural due process when the alleged state actors removed the decedents’ eyeballs
or corneas.” Id. The district court dismissed their complaint after concluding that
Michigan law did not create rights that qualified as constitutionally protected property
interests under the Due Process Clause. Id.

        Just as in Brotherton, however, this court reversed the district court’s judgment,
holding that “the next-of-kin [have] a legitimate claim of entitlement and thus a property
interest in a dead relative’s body, including the eyes.” Id. at 1117. The court reasoned
that it was bound by Brotherton because Michigan law contained “the same basic rights
in a deceased person’s body as Ohio.” Id. at 1114. One such right is that of the next of
kin “to possess the body for burial and prevent its mutilation.” Id. This right was
inferred from several Michigan Supreme Court cases recognizing a cause of action for
the unlawful mutilation of a corpse. See id. (citing, for example, Deeg v. City of Detroit,
76 N.W.2d 16, 19 (Mich. 1956) (“It seems to be settled by the great weight of authority
that the unlawful and intentional mutilation of a dead body gives rise to a cause of action
on behalf of the person or persons entitled to the possession, control, and burial of such
body.”)) The next of kin also have the right to choose whether to make “a gift of all or
No. 08-2228        Waeschle v. Dragovic et al.                                    Page 10


part of the decedent’s body, at least when there is no contrary intent evidenced by the
decedent.” Whaley, 58 F.3d at 1116. In sum, the court concluded that

       the next of kin have the right to dispose of the body in limited
       circumstances, possess the body for burial, and prevent its mutilation.
       Applying Brotherton, we therefore hold that Michigan provides the next
       of kin with a constitutionally protected property interest in the dead body
       of a relative.
Id.

       Waeschle contends that the same basic reasoning found in Brotherton and
Whaley controls this appeal. Her argument is, in essence, that her mother’s brain is no
less constitutionally protected than are eyes or corneas. She also contends that the
cornea cases serve to satisfy the second prong of Saucier’s qualified-immunity analysis
because they allegedly demonstrate that the right to her mother’s brain was clearly
established.

       Brotherton and Whaley, however, are distinguishable from the present case. The
key difference is that the brain of Waeschle’s mother was removed and retained for
study by the Medical Examiner in furtherance of a lawful criminal investigation. By
contrast, the removal of corneas in Brotherton and Whaley served no investigative
function whatsoever. The distinction is important because Waeschle might have no right
under Michigan law to possess, control, or dispose of her mother’s brain once it is
removed for legitimate forensic study.

       A pair of cases decided in the Southern District of Ohio on this very issue
illustrate the conflicting viewpoints. The first case, Hainey v. Parrott, No. 1:02-CV-733,
2005 WL 2397704, at *4-5 (S.D. Ohio Sept. 28, 2005), supports Waeschle’s position.
In Hainey, the plaintiffs brought a class-action lawsuit after learning, as Waeschle did,
that they had buried their loved ones’ bodies without the brains because the latter had
been removed during autopsy and retained for further study. The Ohio coroner moved
for, and the district court denied, summary judgment on the basis of qualified immunity.
No. 08-2228        Waeschle v. Dragovic et al.                                    Page 11


        According to the district court in Hainey, the plaintiffs had a legitimate claim of
entitlement to the decedents’ brains in light of Brotherton. Brotherton’s holding, the
court continued, broadly included “the right to take possession of what remains of the
deceased’s body following the completion of the autopsy.” Hainey, 2005 WL 2397704,
at *6. The court further concluded that “Brotherton very broadly and very clearly held
that family members have a property interest in their decedent’s body parts which is
protected by the due process clause of the Fourteenth Amendment.” Id. at *8. This
purportedly clear ruling, furthermore, rendered the coroner ineligible for qualified
immunity because “a reasonable coroner in this judicial circuit would have known that
disposing of body parts without notice to the decedent’s next of kin would have violated
that right.” Id.

        Hainey therefore supports Waeschle’s claim. But subsequent caselaw in Ohio
reaches the opposite conclusion. The same district court, in Albrecht v. Treon, No. 1:06-
cv-274, 2007 WL 777864, at *1 (S.D. Ohio March 12, 2007) (Albrecht I), considered a
virtually identical fact pattern as the one addressed in Hainey. A lawsuit was filed
against the coroner of Clermont County, Ohio after the plaintiffs discovered that the
coroner “had removed their son’s brain for forensic examination and retained it after the
autopsy.” Albrecht I, 2007 WL 777864, at *1. In response, the coroner argued that the
court in Hainey had misinterpreted applicable Ohio law. Id. The coroner requested that
the district court certify the following question to the Ohio Supreme Court:

        Whether the next of kin of a decedent, upon whom an autopsy has been
        performed, have a property right under Ohio law in the decedent’s
        tissues, organs, blood or other body parts that have been removed and
        retained by the coroner for forensic examination and testing.
Id. at *2.

        Acknowledging that Ohio law affords the next of kin a custodial right in the body
of the decedent, the district court nevertheless concluded that the right does not
“automatically confer to the next of kin a protected right in ‘body parts’ of a decedent
removed and retained by the coroner for forensic examination and testing.” Id. at *5.
The court emphasized that an Ohio statute appeared to severely restrict the rights of the
No. 08-2228        Waeschle v. Dragovic et al.                                    Page 12


next of kin to body parts or tissues collected during the course of an autopsy. Id. (citing
Ohio Rev. Code § 313.123(B)(1) (2006) , which provides that “retained tissues, organs,
blood, other bodily fluids, gases, or any other specimens from an autopsy are medical
waste and shall be disposed of in accordance with applicable federal and state laws”).

       Indeed, there was only one exception to this medical-waste disposal requirement,
triggered by religious considerations. Id. (citing Ohio Rev. Code § 313.123(B)(2),
which states that the coroner must return specimens to the person who has the right to
the disposition of the body if “the coroner has reason to believe that the autopsy is
contrary to the deceased person’s religious beliefs.”). Despite this statute’s provision
stating that autopsy specimens are to be treated as medical waste, the district court
granted the coroner’s request to certify the issue to the Ohio Supreme Court after
concluding that none of the existing Ohio authorities resolved the precise issue of
whether the next of kin had a right to dispose of body parts that had been collected
during an autopsy. Albrecht I, 2007 WL 777864, at *5–6.

       The Ohio Supreme Court accepted the certified question for review and
repudiated the plaintiffs’ position, holding that “the next of kin of a decedent upon whom
an autopsy has been performed do not have a protected right under Ohio law in the
decedent’s tissues, organs, blood, or other body parts that have been removed and
retained by the coroner for forensic examination and testing.” Albrecht v. Treon, 889
N.E.2d 120, 122 (Ohio 2008) (Albrecht II) (emphasis added).              In reaching this
conclusion, the court distinguished Brotherton, reasoning that “Brotherton’s specific
holding regarding removal of corneas for purposes unrelated to the autopsy is not
relevant in this case.” Id. at 124. The corneas in Brotherton were extracted pursuant to
an Ohio statute that permitted their removal even when doing so was not necessary to
conduct a forensic examination. 923 F.2d at 478-79. Different interests are at stake,
according to the Ohio Supreme Court, when tissue is taken for lawful investigative
purposes:

       [A] deceased’s next of kin had no protected right in autopsy specimens
       pursuant to Ohio statutes. The Ohio Revised Code authorizes coroners
       to perform an autopsy when the coroner believes an autopsy is necessary.
No. 08-2228         Waeschle v. Dragovic et al.                                     Page 13


        A coroner’s forensic examination is a classic function of the police
        power of the state. Many times, autopsy specimens and the results of the
        forensic examination are essential evidence in the prosecution of a crime.
        Sometimes, autopsy specimens must be preserved for long periods of
        time.
Albrecht II, 889 N.E.2d at 126-27 (citation omitted) (emphasis added).

        Furthermore, the Ohio Supreme Court noted that its conclusion did not depend
on the existence of the 2006 statute that designated autopsy specimens as medical waste.
Id. at 126 (holding that “[e]ven before [Ohio Rev. Code § 313.123(B)] was enacted, a
deceased’s next of kin had no protected right in autopsy specimens pursuant to Ohio
statutes”). Albrecht II clearly raises a question as to the scope of the quasi-property right
at issue in both Brotherton and Whaley where forensic specimens are collected in the
course of criminal investigations (as in the present case).

        Waeschle’s property rights, of course, are not defined by Ohio law. But Whaley
observed that Michigan law contained “the same basic rights in a deceased person’s
body as Ohio.” Whaley, 58 F.3d at 1115. The Ohio Supreme Court’s decision in
Albrecht II is therefore relevant in assessing whether the same right is clearly established
under Michigan law. And the Court’s decision in Albrecht II, which explicitly denied
that the next of kin have a right to body parts collected for forensic examination,
suggests that such a right would probably not be recognized under existing Michigan
law.

        But our analysis is not based exclusively on the analogy to cases construing Ohio
law. Instead, our independent review of Michigan law fails to establish an unequivocal
post-autopsy right to specimens taken for the purpose of a lawful criminal investigation.
One of the cases from the Michigan Supreme Court cited by Waeschle recognizes a
cause of action for the unlawful and intentional mutilation of dead bodies. Deeg v. City
of Detroit, 76 N.W.2d 16, 19 (Mich. 1956) (“It seems to be settled by the great weight
of authority that the unlawful and intentional mutilation of a dead body gives rise to a
cause of action on behalf of the person or persons entitled to the possession, control, and
burial of such body.”). Another recognizes the next of kin’s right to control a relative’s
No. 08-2228        Waeschle v. Dragovic et al.                                    Page 14


body for the limited purpose of securing a burial. Doxtator v. Chicago & W.M. Ry. Co.,
79 N.W. 922, 922 (Mich. 1899) (recognizing that, although there was “no property in
a dead body [at common law], . . . the one whose duty it is to care for the body of the
deceased is entitled to possession of the body, as it is when death comes, and that it is
an actionable wrong for another to interfere with that right by withholding the body or
mutilating it in any way”).

       But these cases, as well as others cited by Waeschle, fail to address the question
of body parts retained for forensic examination. See Keyes v. Konkel,78 N.W. 649, 649
(Mich. 1899) (observing that various state courts have considered dead bodies to be
“quasi property,” and recognizing a tort for infringing on a next of kin’s right to have an
unmutilated dead body delivered for burial); Dampier v. Grace Hosp. Corp., 592
N.W.2d 809 (Mich. Ct. App. 1999) (addressing causes of action available against
coroners who allowed the decomposition of a dead body in their possession); Tillman
v. Detroit Receiving Hosp., 360 N.W.2d 275, 277 (Mich. Ct. App. 1984) (“While there
is no property right in the next of kin to a dead body, . . . Michigan jurisprudence
recognizes a common law cause of action on behalf of the person or persons entitled to
the possession, control, or burial of a dead body . . . .”). None of these cases consider
the situation where body parts were removed and retained during an autopsy for study
in the course of a properly authorized criminal investigation.

       Nor does Waeschle identify any Michigan statute that unambiguously sets forth
a Medical Examiner’s duties regarding how he or she should dispose of particular body
parts collected for the purposes of an autopsy.         One statute authorizes Medical
Examiners to retain, “as long as may be necessary, any portion of the body believed by
the medical examiner to be necessary for the detection of any crime.” Mich. Comp.
Laws § 52.205 (emphasis added). The same statute instructs Medical Examiners to
“promptly deliver or return the body to relatives or representatives of the deceased.” Id.
(emphasis added). Another statute cited by Waeschle simply describes the right of the
next of kin to make decisions regarding, for example, funeral arrangements. See id.
§ 700.3206(1).
No. 08-2228         Waeschle v. Dragovic et al.                                     Page 15


        Waeschle argues that the above provisions create the right to a prompt return of
her mother’s brain after the Medical Examiner had completed the autopsy. But the
statutory language does not specify whether each and every body part or specimen
collected during the course of an autopsy must be returned to the next of kin on a
piecemeal basis. Such a requirement might prove totally impracticable.

        In sum, Michigan law regarding the rights of the next of kin in their relative’s
body parts removed for forensic examination during an autopsy is at best equivocal. Not
a single case instructed Dragovic to treat the brain in any manner other than the way he
did. Nor did any Michigan statute unambiguously instruct Dragovic on how to dispose
of individual body parts retained for forensic examination as opposed to dealing with the
body as a whole.

        Waeschle’s alleged constitutionally protected property right to her mother’s brain
is therefore not clearly established because the underlying state-created property interest
is not “sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” See Drogosch v. Metcalf, 557 F.3d 372, 379 (6th Cir. 2009) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). For that reason, Dragovic is entitled
to summary judgment on the basis of qualified immunity. See Drogosch, 557 F.3d at
379.

        To avoid any misunderstanding, we wish to clarify the limits of this holding.
There is nothing in the preceding analysis that is intended to suggest that Michigan law
clearly establishes that the next of kin have no quasi-property interest in body parts
collected during the course of an autopsy for forensic examination. Nor is the discussion
meant to foreclose the possibility that, if Michigan establishes such a right in the future,
the interest would rise to the level of a constitutionally protected property right under the
Fourteenth Amendment. In light of Pearson v. Callahan, 129 S. Ct. 808, 818 (2009),
however, we are under no obligation to determine the existence or the scope of
Waeschle’s right to her mother’s brain in the present case.

        We also wish to acknowledge that Waeschle’s shock in learning that her
mother’s brain was incinerated as medical waste is understandable. And the possibility
No. 08-2228        Waeschle v. Dragovic et al.                                    Page 16


exists that Michigan might in the future decide to recognize a right to recover organs that
were originally retained as part of a lawful criminal investigation. Such a right would
also presumably have to distinguish between major body parts (to which individuals like
Waeschle would have a right to possess for the purpose of burial or cremation) and
insignificant tissue samples (to which no such right would attach). But Michigan law
as presently developed does not clearly recognize that such a custodial right to body
parts exists. And whether to recognize such a right is a task that the Michigan legislature
and courts are better equipped to handle than this court, which is why we are exercising
our discretion under Pearson to not further explore the first prong of the qualified-
immunity test as set forth in Saucier v. Katz, 533 U.S. 194 (2001).

D.     Oakland County and official-capacity claim

       Although the preceding qualified-immunity analysis shields Dragovic from
Waeschle’s individual-capacity claim, we have declined to evaluate the merits of
Waeschle’s due process claim because we are uncertain as to whether Michigan law
gives Waeschle a property interest in her deceased mother’s brain that is constitutionally
protected. Waeschle’s due process claim against Dragovic in his official capacity and
against Oakland County is therefore still pending.

       We have already explained that the merits of Waeschle’s constitutional claim
depend primarily on whether, under Michigan law, she had a property interest in her
deceased mother’s brain. See Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611
(6th Cir. 2007) (explaining that the question of whether a constitutionally protected
property interest exists is often a question of state law). Specifically, Waeschle’s due
process claim turns on the answer to the following state-law question:

       Assuming that a decedent’s brain has been removed by a medical
       examiner in order to conduct a lawful investigation into the decedent’s
       cause of death, do the decedent’s next-of-kin have a right under
       Michigan law to possess the brain in order to properly bury or cremate
       the same after the brain is no longer needed for forensic examination?
       Given our view that the Michigan courts are better suited to answer the unsettled
state-law aspect of Waeschle’s due process claim than we are, we will exercise our
No. 08-2228        Waeschle v. Dragovic et al.                                   Page 17


discretion to have the district court certify the above-stated issue to the Michigan
Supreme Court. See Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th
Cir. 1995) (explaining that certification to a state’s highest court is proper “when the
question is new and state law is unsettled”) (citations omitted); Geib v. Amoco Oil Co.,
29 F.3d 1050, 1060 (6th Cir. 1994) (observing that certification is appropriate “where
an important question of state law has arisen solely in federal court”); Mich. Ct. R.
§ 7.305(B)(1) (permitting the Michigan Supreme Court to address questions of Michigan
law that have been certified by a federal court).

                                 III. CONCLUSION

       For all of the reasons set forth above, we REVERSE the portion of the district
court’s judgment denying Dragovic’s qualified-immunity defense, and REMAND the
case with instructions to grant his motion for summary judgment with respect to
Waeschle’s individual-capacity claim against him. We also REVERSE the judgment
of the district court denying Oakland County’s and Dragovic’s motion to certify the
question of state law to the Michigan Supreme Court, and REMAND the case with
instructions to certify the question and conduct such further proceedings as are necessary
for the proper disposition of this case.
