“Clearly established” constitutional/statutory rights, continued

1. Qualified Immunity - when are P’s rights “clearly established” such that a “reasonable person should have known” that their actions violated them? • Teens in Mena Arkansas spiked the punch at an extra-curricular. Defendant school board suspended them in Feb. 1972. Students were not given a hearing to present their side of the story. Teens sued in Arkansas federal court claiming due process violation. In 1972, SCT had not issued a decision re the constitutional due process protections required for high school suspension. Short of a SCT case how do Ps show that their rights were clearly established? • What if there was a nearly factually identical 8th Circuit decision requiring due process for school suspensions • Case is an “authoritative decision from a controlling jurisdiction” & therefore P’s rights clearly established – no immunity defense for D • 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” - no immunity defense for D • BUT P’s rights NOT “clearly established” if there is a circuit split.

2. “Clearly established” constitutional/statutory rights, continued • What if earlier 8th Circuit decision requiring due process involved college students suspended for a semester for illegal alcohol consumption? • Depends on whether court believes case involving college students is “similar enough to give reasonable notice that it’s principles” would likely apply in the instant situation. Cases don’t have to be factually identical to clearly establish P’s constitutional & statutory rights (and thus eliminate D’s defense). • What if the factually identical 8th Circuit decision was handed down only 14 days before school board’s decision in Wood – should school board “have known” of that decision? • Will likely depend on context: • Do entities like D keep immediately abreast of law? What technology is available for that (in 1972)? What have the trends in the law been?

3. What is a declaratory judgment? • A method by which a person fearing injury from another can clarify and conclusively determine rights prior to actual injury occurring. • Example: • Wallace plaintiff seeks a judicial declaration that Tennessee’s excise tax on gasoline purchased elsewhere but stored in Tenn. violates the commerce clause and 14thAmdt. prior to the tax actually being assessed and/or D’s refusal to pay. • Declaratory judgments are a purely statutory creation: • Uniform DJA – adopted in Missouri (Mo. Rev. Stat. 527.010-080) • Federal DJA – 8 USC '' 2201-02

4. In what types of situations does one most commonly use declaratory judgments? Examples: • Constitutional challenges to statutes or regulations • Does the law as applied to P (e.g., Wallace) or on its face violate state or federal constitutional provisions? • Intellectual Property litigation • Patent or trademark validity in the midst of an infringement dispute • Insurance Coverage litigation • Insured may seek determination of scope of insurance coverage while in dispute with insurer or third party • Will Contests • Beneficiary/potential beneficiary may seek declaration that is entitled to recover (or entitled to a certain amount) during a will contest • Contract disputes (or avoidance thereof) • Party to contract may seek declaration as to the parties’ rights to resolve uncertainty and avoid further dispute.

5. Declaratory Judgments & Threshold Requirements – based on Wallace • TN law requires P to pay a gasoline privilege tax (for storing w/in Tennessee gasoline that was purchased out-of-state). P claims tax violates commerce clause & 14A. To enjoin future enforcement of the TN statute in Wallace, P would have to show irreparable injury and a ripe threat of harm. • Does P have to show irreparable injury to get a declaratory judgment that the statute is unconstitutional? • 28 USC § 2201(a) & Mo. Rev. Stat. § 527.010 • Does P have to show a threatened injury is ripe in order to get a declaratory judgment that the statute is unconstitutional? Was the threat ripe in Wallace?

6. Ripeness & potentially unconstitutional laws: Can P simply challenge a law once its enacted (assuming P engages in activity w/in its parameters such as storing out-of-state gasoline) 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 and can be enforced against P 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 • This tends to be more true if the cost of compliance is high or the risk of escalating penalties for non-compliance is significant (e.g., daily penalties for non-compliance) • Others say the state must make some movement toward enforcement before an injury is ripe. • But that movement toward enforcement can be as insignificant as a warning letter or statement to P

7. “Ripeness” in Cardinal Chemical • Facts: • Morton files lawsuit against CC for patent infringement; CC denies infringement & counterclaims for 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 the Fed. Cir. on its mootness ruling – Why? • Is there any reason to hear CC on the validity issue now that the infringement dispute has gone away? Is there any “ripe” controversy?

8. A situation unripe for declaratory judgment: • Wycoff : Plaintiff (hauling business) seeks a declaration that it is engaged in interstate commerce. SCT says P’s request for a declaratory judgment is not ripe because P asked for a declaration of status rather than a declaration of rights. • What could P have done to make the Court view this as an actual ripe controversy?

9. Court discretion to deny a declaratory judgment Uniform DJA/Mo. Rev. Stat. 527.06 • The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. • In what circumstances will a declaratory judgment likely NOT terminate uncertainty? • Dodson v. Maroney(p. 576 n.5) – P wants a declaration that Askling’swill was invalid due to undue influence. • As a beneficiary, P would normally be able to do this in a will contest. But Askling is still alive. And even if undue influence occurred, she could still change the will so a DJ re this will wouldn’t help. • Often in such cases, you can argue that the particular dispute simply isn’t ripe.

10. Procedural fencing and declaratory judgments • A, who is a mechanic, fixes B’s car. The repairs on the car subsequently fail. B has a massive car wreck and is injured. A seeks a declaratory judgment stating that she was not negligent in performing the repairs. • Should the court grant the declaratory judgment? • Students sue state university in federal court seeking a declaratory judgment that the university’s out-of-state tuition charges for the first two years they were students violated federal law. • Should the court grant the declaratory judgment? • What if the plaintiffs were prospective students who seek a declaration that the university’s out-of-state tuition charges violate federal law?

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