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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 your source.

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 DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION!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 answer.

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.




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 attention.

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 amendment rights.

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 Constitution.

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.


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 answer.

"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 our federalism.

[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 (1961).

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