The effect of a declaration of unconstitutionality

[Douglas Laycock]

         Marty's post is very helpful.  There is also an old Brandeis 
opinion that says a party who has reasonable grounds for litigation and 
gets a preliminary injunction against enforcement of a statute is entitled, 
if the statute is ultimately upheld, to a permanent injunction against 
prosecution for violations committed under the protection of the 
preliminary injunction.  Oklahoma Operating Co. v. Love, 252 U.S. 331 
(1920).  This may be a relic of the days of substantive due process; it is 
hard to square with the modern view that the scope of a federal remedy is 
limited to the scope of the constitutional violation adjudicated.  But it 
is more consistent with the balancing of equities undertaken at the 
preliminary injunction stage.  None of the opinions in Edgar v. MITE cite it.

         The Model Penal Code, which is the basis for many of the state 
criminal codes, also addresses the issue.  It is a defense that defendant 
acted in the "belief that conduct does not legally constitute an offense . 
. . when . . . [defendant] acts in reasonable reliance upon an official 
statement of the law, afterward determined to be invalid or erroneous, 
contained in . . . a judicial decision, opinion, or judgment."  §2.04(3), 
10 Unif. Laws Ann. 468 (1974).  Some states have narrowed this.  In 
Illinois, where Edgar v. MITE arose, the defense was limited (last time I 
checked) to reliance on appellate decisions later overruled or 
reversed.  720 Ill. Comp. Stat. Ann. §5/4-8(b)(3) (West 1993).

         There are also a number of old cases -- early 20th century -- 
going both ways on the question whether reliance on a preliminary 
injunction is a defense when the statute is silent.  I assume Marty is 
right that prosecutorial discretion is the reason we don't see such cases 
today.  But we still sometimes get persistent and repeated prosecutions 
when a prosecutor is determined to drive an activity out of the community.

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Douglas Laycock
University of Texas Law School
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