Remedies Against Gov’t Defendants

1. Remedies Against Gov’t Defendants • There are greater remedial obstacles when one sues the state as defendant than when one sues a private parties: • Suits for damages against gov’t for constitutional violations require proof of actual harm (recall Carey v. Piphus) – SCT has disallowed presumed damages • The 11th Amendment prohibits suits against a state for violations of federal law in federal court (or in a state’s own state court). BUT • Citizens can sue State officers in their official capacity in federal court for prospective injunctive relief (aka official capacity suits) • States can consent to be sued in federal court for retrospective relief • Congress can override States’ 11A immunity against retrospective relief in federal court • Citizens can sue State officers (and other gov’t officers) in their personal capacity for damages or injunctive relief under 42 USC § 1983 (aka personal capacity suits)

2. Lawsuits Against State (and other Executive) Officials – Personal Capacity Suits • 42 U.S.C. § 1983: Creates a cause of action for damages/ injunction against any person who, acting under color of state law, abridges rights created by the Constitution/laws of the U.S. • Lawsuit can be brought in state/federal court against individual gov’t actors • Lawsuit follows the individual monetarily & personally • BUT D can sometimes raise an affirmative defense to lawsuits: • Absolute immunity • Qualified immunity • Availability of immunity defense depends upon remedy sought: • Injunction = D has no Immunity Defense (generally) • Damages = D may have Absolute or Qualified Immunity Defense

3. Absolute Immunity Defenses to Section 1983 Suits Seeking Damages • Focus when determining whether absolute immunity exists is on the “function” performed. • Functions enjoying absolute immunity: • Judges – judicial function (does not include promulgating rules of conduct for lawyers or actions clearly in excess of jurisdiction) • Legislators – legislative function (includes immunity against injunctions) • Prosecutors – prosecutorial activities (when acting as officer of court BUT NOT investigative or administrative tasks) • Police Officers – when witnesses at trials • POTUS – Acts of Office

4. Harlow v. Fitzgerald – Qualified Immunity • Current Standard: Gov’t officials performing discretionary functions generally are shielded 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. • Why provide a qualified immunity defense – what is the goal of immunity? • Why does the Court adopt an objective standard rather than a subjective malice standard?

5. Dealing with the “clearly established” constitutional or statutory rights requirement – a hypo • Teens in a small Arkansas town spiked the punch at an extra-curricular home-economics meeting. The defendant school board suspended them after a hearing that none of the plaintiffs were allowed to attend. Nor were they ever allowed to present their side of the story. The school board made its decision in Feb. 1972. • Teens sue in Arkansas federal district court claiming due process violations. In 1972, SCT had not issued a decision re the due process protections required for high school suspension. • How do you determine if the law is “clearly established” such that a “reasonable person should have known” of them?

6. “Clearly established” constitutional or statutory rights of which “a reasonable person should have known” • A nearly factually identical 8th Circuit decision requiring due process for school suspensions would be “clearly established” law • It is an “authoritative decision from a controlling jurisdiction.” • What if no controlling decision in 8th Circuit but 5 other circuits agreed that due process protections were required? • Probably “clearly established” because it is “a consensus of “persuasive authority.” • NOT “clearly established” if circuit split. Officials aren’t required to choose between equally plausible interpretations only to be told they are wrong. • What if earlier 8th Circuit decision requiring due process involved college students suspended for a semester for spiking drinks at school function? • Depends on whether court believes case is “similar enough to give reasonable notice that it’s principles” would likely apply in the instant situation. Doesn’t have to be factually identical to clearly establish law. • What if the factually identical 8th Circuit decision was handed down only 14 days before school board’s decision in Wood – should school bd “have known”? • Will likely depend on context – must entities keep immediately abreast of law? What technology is available for that? What have the trends in the law been?

7. What is a declaratory judgment? • A method by which a person fearing injury from another can clarify and conclusively determine rights prior to the actual injury occurring. • Example: • Wallace plaintiff wants a judicial declaration that Tennessee’s excise tax on stored gasoline violates commerce clause and 14th Amendment. • Declaratory judgments are a purely statutory creation: • Uniform DJA – adopted in Missouri (Mo Rev. Stat. 527.010) • Federal DJA – 8 USC Sec. 2201-02

8. Declaratory Judgments & Threshold Requirements • TN law requires P to pay a gasoline privilege tax (for storing w/in Tennessee gasoline purchased out-of-state). P claims that tax violates commerce clause and 14A. In order to enjoin enforcement of the TN statute in Wallace, plaintiff would have to show irreparable injury and a ripe threat of harm. • Does plaintiff have to show irreparable injury to get a declaratory judgment that the statute is unconstitutional? • Does plaintiff have to show a threatened injury is ripe in order to get a declaratory judgment that the statute is unconstitutional?

9. When are potentially unconstitutional laws ripe for challenge? • Can P simply challenge a law once its enacted (assuming P falls within its parameters) or must P show that the State has actually threatened to enforce the law against him? In other words, is there a ripe threat of harm merely because the statute exists even if the State hasn’t yet enforced or threatened to enforce the statute yet? • Courts answer this differently: • Some say the coercive effect of the law creates a ripe threat of injury and P can sue for a declaratory judgment • Others say the state must make some movement toward enforcement before an injury is ripe.

10. “Ripeness” and DJs in Cardinal Chemical • Morton-------------------------------------------------------------------------->Cardinal Int’l<------------------------------------------------------------------------------Chemical • Morton files lawsuit against CC for patent infringement; CC denies infringement/counterclaims for DJ that patent is invalid. • Fed. Cir. finds for CC on infringement issue. But dismisses the counterclaim re invalidity as “moot” because the infringement issue is no longer pending. • SCT reverses on invalidity issue. CC is in an untenable situation if can’t get a declaration re validity when threatened with infringement actions. • This is true even when no infringement action filed (scarecrow patents) • There is a sufficiently ripe “controversy” for DJ lawsuit to proceed independent of infringement • Note - P has an interest in this being “ripe” as well

11. A situation unripe for declaratory judgment • Wycoff : Plaintiff (hauling business) seeks a declaration that it is engaged in interstate commerce. SCT says P asks for a declaration of status rather than a declaration of rights. • What could P have done to make this seem like an actual controversy?

12. Differences between preventive injunctions & declaratory judgments (using Wallace as an example: