1. This examination is "open universe." You may use any supplemental
materials you wish. There are, however, two caveats:
A. If you quote directly from any supplemental source, you must cite
B. You may not discuss this examination with any other person, either
while you are taking it or after you have handed it in. This prohibition
will remain in effect until the end of the examination period.
2. Twenty four hours will be allotted for the examination. If the
examination and your response is not returned within twenty four hours,
your grade will be reduced by two (2) letter grades.
3. In answering the essay questions, you should rely upon case law from
the textbook and handouts and our class discussions. Outside research is
neither expected nor rewarded.
4. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! There is no
presumption that use of a case name results from knowledge of its
contents. Discuss and analyze any case law you plan to use in your
5. Your answer may be handwritten or typewritten. If you use a word
processor, you may edit and revise your answers freely during the twenty
four hour exam period.
DO YOUR BEST TO WRITE LEGIBLY. FAILURE TO WRITE LEGIBLY WILL RESULT IN
AN IRATE GRADER READING YOUR EXAMINATION.
QUESTION ONE (65%)
The law students at South Dakota Central ("SDC") were up in arms over
the imminent visit of Justice Cauldwell Tucker as their commencement day
speaker. While his status as a State Supreme Court Justice would reflect
well upon the small, state-owned law school, some of the law students
remembered all too well the particulars of Tucker's career before his
election to the South Dakota Supreme Court.
Prior to his election to the bench, Cauldwell Tucker had been a white
supremacist. He had opposed the recognition of Martin Luther King Day in
South Dakota, had publicly expressed his view that the Holocaust was
overblown by American Jews and had briefly served as a high ranking
wizard in the Klan. His election to the bench had been hotly contested.
Tucker had insisted that his "youthful indiscretions" were behind him
and he enjoyed the strong support of the business community. Tucker's
opponent, while reputable and intelligent, was a dull speaker and
lethargic campaigner. Tucker was elected to the State Supreme Court by
the narrowest of margins.
The Dean of SDC's law school had anticipated the students, mixed
reaction to his choice of graduation speaker. He sent around several
stern memoranda in the weeks before graduation, exhorting the students
to be on their best behavior and treat their distinguished guest with
courtesy and respectful attention. He also noted that security would be
tight and that both county police and state troopers would be backing up
the campus police for the duration of the visit.
On the morning of commencement, a cadre of students concealed themselves
in the rafters above the stage, and waited. Once the hall had filled
with students, the administration had taken its place and the speaker
was being introduced, the students let down a king size bedsheet with
huge letters in red: "WIZARD GO HOME". They also set off several small
firecrackers, to ensure the full attention of their audience.
Police officers swarmed up the stage ladders from every direction.
Truncheons flew, nightsticks thumped and within five minutes the sign
had been removed and the stage area was clear. The police took the
students to the local station, where they were booked on charges of
disorderly conduct, disturbing the peace and resisting arrest.
Four of the students-were bruised and bleeding from cuts and scrapes;
two others were unconscious, and did not revive during the 20-minute
ride to the station. The police officers locked the unconscious students
in a cell, to see if they would awaken on their own. After another 15
minutes had passed, a state trooper suggested that they might need
medical treatment. A spirited discussion followed, but within 10 minutes
an ambulance was called to transport the two students to a local
hospital. The other four students, some of whom complained about
bruises, scratches and cuts, were not provided with any medical
The students had expected (indeed, hoped) to be arrested, and had
friends and relatives ready to post bail. As soon as ,@- heir bail had
been raised, they were released from custody and returned to the law
school. Upon entering the law school, they were accosted by the Dean.
The Dean was apoplectic. "I'll see to it that none of you ever practices
law for the rest of your damn lives!," he told them. "And don't look for
your diplomas any time soon!"
The students retreat@@d to the law library. They had already prepared
the gist of a 1983 complaint against the officers, and they hurriedly
revised the document to reflect the particulars of their arrest. The
President of the Black Law Students Association stopped by to offer his
support, as did the Student Bar Association President. Both wanted the
names of their organizations added to the complaint as plaintiffs, and
the students were happy to do so.
The students then drove to the nearest federal court, located in
Badlands, South Dakota and filed their complaint on the day after their
release. In their federal 1983 suit, the students named the following
persons or entities as defendants: the individual officers who had
arrested them, the County of Badlands (which employed the local police),
the South Dakota State Police Department (which employed the state
troopers), the Law School (which employed the campus security officers),
the Governor of South Dakota and the State of South Dakota. They alleged
that the police had used excessive force in their arrest, had been
inadequately trained, and that all the defendants had violated their
first, fourth and fourteenth amendment rights. They sought unspecified
damages, an injunction to halt the criminal proceedings soon to be
instituted in state court, and an injunction to prevent the Dean from
withholding their diplomas.
A criminal complaint was filed in state court roughly two weeks after
the students had been released, due to poor communication between the
police station and the local prosecutor's office. The criminal complaint
charged the students with resisting arrest, disturbing the peace and
disorderly conduct. The students were also charged with violating a
recently enacted state statute, that is, section 504. Section 504 made
it a second degree misdemeanor for "any attorney or law student to
publicly insult, demean or abuse a sitting judge." The students pled not
guilty to all charges, and argued that the application of these criminal
statutes to their conduct violated their first, fourth and fourteenth
The Dean, meanwhile, composed a letter to the Board of Bar Examiners of
the State of South Dakota. He formally withdrew his previous
recommendations of the students, character and fitness to practice law,
described the incident, and concluded that the students "did not think
that the law applied to them" and lacked the respect for the rule of law
that was necessary for future practitioners. He recommended that all six
students be denied admission to the State Bar.
The State Board of Bar Examiners began to conduct an independent
examination of the matter. Upon learning of this development, the
students amended their federal complaint to add the Board of Bar
Examiners as defendants, and to request an injunction ordering the State
Board of Bar Examiners to cease their investigation until such time as
the federal court could decide whether their treatment had violated the
You are clerking for the federal judge before whom the students' 1983
complaint is pending. The judge has requested a memorandum to resolve
the following questions:
(a) Whether injunctive relief should be granted as to any of the named
defendants. (b) Whether any of the defendants are entitled to raise
animmunity defense, and if so, whether they should be dismissed before
trial. (c) Whether a state court judgment against the students finding
them guilty of criminal violations should be entitled to preclusive
effect in federal court, assuming such a judgment was obtained prior to
resolution of the federal claim. (d) Discuss and resolve any other
issues you believe to be presented by the facts.
QUESTION TWO: (35%)
Choose a Justice of the United States Supreme Court, who may be
currently sitting, retired or deceased. Discuss what you believe their
response would be to the following quotation. The Justice you choose may
(but need not) be the Justice whose opinions you assumed responsibility
for during the semester. Please use specific cases to support your
"The jurisdiction which Article III of the Constitution conferred on the
national judiciary reflected the assumption that the state courts, not
the federal courts, would remain the primary guardians of that
fundamental security of person and property which the long evolution of
the common law had secured to one individual as against other
individuals. The Fourteenth Amendment did not alter this basic aspect of
[Tlhe protection of the people from local delinquencies and shortcomings
depends . . . upon the active consciences of state executives,
legislators and judges. Federal intervention, which must at best be
limited to securing those minimal guarantees afforded by the evolving
concepts of due process and equal protection, may in the long run do the
individual a disservice by deflecting responsibility from the state
lawmakers, who hold the power of providing a far more comprehensive
scope of protection. Local society, also, may well be the loser, by
relaxing its sense of responsibility. . . .
Felix Frankfurter, dissenting in Monroe v. Palpe, 81 S.Ct. 473
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