Edward Allyn Hudacko v. Regents of the University of California, et al.

With his divorce, a state family court stripped Ted Hudacko of all parental rights but one: “any gender identity related surgery” on his minor son required Hudacko’s approval. When such surgery occurred at a state hospital without his knowledge or consent— presenting another instance of what four Justices call “a question of great and growing national importance”—Hudacko sued for violating his parental rights. He pleaded that the procedure was surgery and defendants knew it. Yet the Ninth Circuit affirmed dismissal of his claims, determining that qualified immunity applied because Hudacko did not present controlling judicial precedent under similar facts, thus failing to show a violation of clearly established law. The questions presented are:

1. Whether judicial decisions are the only valid source of clearly established law (the approach of the 5th, 7th, 9th, 10th, and D.C. Circuits); or whether other sources of law or non-legal materials, like professional knowledge, may also be examined (as in the 1st, 2d, 3d, 4th, 6th, 8th, and 11th Circuits)?

2. Whether the same clearly established-law test applies to all government officials, or whether as a threshold question courts should determine “whether immunity was historically accorded the relevant official in an analogous situation at common law,” as this Court used to ask in qualified immunity cases and still does for absolute immunity. Baxter v. Bracey, 590 U.S. 1011, 1014 (2020) (Thomas, J., dissenting from denial of certiorari).