DECLARATORY JUDGMENT

Federal Declaratory Judgment Act of 1934,
U.S.C. Title 28 U.S.C. § 2201

Creation of a remedy (a) in a case of actual controversy within its jurisdiction ... any court of the United States, upon filing of an appropriate pleadings, may have declare the rights and other legal relations of any interested party seeking such declaration. http://www.law.cornell.edu/uscode/28/2201.html

The Declaratory Judgment Act of 1934, now 28 U.S.C. 2201, styled "creation of remedy," provides that in a case of actual controversy a competent court may "declare the rights and other legal relations" of a party "whether or not further relief is or could be sought." This is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant. Public Serv. Comm’n v. Wycoff Co. 344 U.S. 237, 241 (1952).

The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power" Public Serv. Comm’n v. Wycoff Co. 344 U.S. 237, 242 (1952) > [297 U.S. 237, 325]

Declaratory Judgment
Civil Court Action.

When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) >Doe v. Bolton, 410 U.S. 179, 188 (1973).

Declaratory judgment action is designed precisely to give one potentially a defendant in a criminal prosecution, access to judicial determination prior to actual arrest when facts indicate a sufficient basis for his belief that conduct he deems protected under the Constitution will subject him to such prosecution. Zwicker v Koota D.C.N.Y.1968 290 F. Supp. 244 reversed on other grounds, 89 S.Ct.956, 394 U. S. 103.

Declaratory judgment relieves a party from acting at his or her peril while uncertain of his or her legal rights because another party has yet to bring a course of action. The threat of prosecution is real and immediate As long as the statutes are on the books and compliance there with being coerced by threat of enforcement, the controversy as to the validity of the Acts are

 both immediate and real. Lake Carriers’ Asso. v. MacMullian (1972) 406 US 498, 32 LEd. 257, 92 S.Ct 1749.

''It is only where rights, ….are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power. State of Texas v. Interstate Commerce Commission, 258 U.S. 158, 162(1922).

“The device of the declaratory judgment is an honored one. Its use in the federal system is restricted to "cases" or "controversies" within the meaning of Article III. The question must be ‘appropriate for judicial determination,’ not hypothetical, abstract, academic or moot. It must touch ‘the legal relations of parties having adverse legal interests’ Id., 240-241. It must be ‘real and substantial’ and admit of ‘specific relief through a decree of a conclusive character.’" Poe v. Ullman, 367 U.S. 497, 510 (1961) > Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 -41 (1937).

A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) > O'Shea v. Littleton, 414 U.S. 488, 494 (1974).

But "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough. Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) >262 U.S. 553, 593

…."actual controversy" ….. The test to be applied …is the familiar one "Basically, the question in each case is whether . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Lake Carriers’ Asn. v. MacMullan, 406 U.S. 498, 506 (1972) > 312 U.S. 270, 273.

Petitioner has alleged threats of prosecution that cannot be characterized as "imaginary or speculative," In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights. Moreover, petitioner's challenge is to those specific provisions of state law which have provided the basis for threats of criminal prosecution against him. Steffel v. Thompson 415 U.S. 452, 459(1974).

When contesting the constitutionality of a criminal statute, "it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights." Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) > Steffel v. Thompson 415 U.S. 452, 459(1974).

Due Process

Constitutional Right to be Heard

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. 71 Board of Regents v. Roth, 408 U.S. 564, 570-71 1972

That the hearing required by due process affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest. Boddie V. Connecticut   401 U.S. 371, 378-379  (1971)

The constitutional right to be heard is a basic aspect of the duty of government to follow a fair

process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment - to minimize substantively unfair or mistaken deprivations of property….So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference. Fuentes v Shevin, 407 U.S. 67, 80-1 (1972). 

The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. ……, the Court has traditionally insisted that opportunity for that hearing must be provided before the deprivation at issue takes effect Fuentes v Shevin,  407 U.S. 67, 82 (1972).

[T]he right to a prior hearing that is the only truly effective safeguard against arbitrary deprivation of property. Fuentes v Shevin,  407 U.S. 67, 84 (1972).

The right to a prior hearing attaches only to the deprivation of an interest encompassed within the Fourteenth Amendment's protection. Fuentes v Shevin,  407 U.S. 67, 84 (1972).

[D]ue process requires an opportunity for a hearing before a deprivation of property takes effect…... In none of those cases did the Court hold that this most basic due process requirement is limited to the protection of only a few types of property interests. Fuentes v Shevin,  407 U.S. 67, 88-89 (1972).

Lack of Prosecution

Rules Civil Procedure. No. 23(b)(2),  “The party opposing the class has refused to act generally applicable to the class, there by making appropriate declaratory relief with respect to the class as a whole”. https://www.law.cornell.edu/rules/frcp/rule_23

“Defendants who opposed the class have acted or refused to act on grounds generally applicable to the class in that they have generally attempted to enforce facially a defective statute  with procedures violating due process and intended to pursue such a course in the future so that final declaratory relief respecting the class as a whole is proper. Kilfoyle v Heyison (1976 WDPa) 417 F Supp 239.

In ….. Poe v. Ullman,[367 U.S. 497] .  a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Doe v. Bolton,  410 U.S. 179, 188 (1973).

Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. Poe v. Ullman, 367 U.S. 497, 508 (1961)