CIVIL PROCEDURE OUTLINE
I. What is Fair Process?
a. LANDSMAN Article: Trade off between FAIRNESS (Justice being served) and COST+EFFICIENCY
i. Neutral and Passive Decision Maker
i. As judges hear more cases, maybe they are more predisposed to certain things if they were to be involved in the fact finding.
ii. Party Presentation of Evidence
i. Tyler’s Study: People feel better about system when they get to defend themselves even if they lose
i. Our notion of justice is based on living in America.
ii. Lawyers are necessary in system: Lawyers have skill and expertise that allow more equity in this clash. They focus issues that HELP move process forward.
iii. Lawyers drive up cost of system.
iii. Highly Structured Forensic Procedure
i. In U.S., more interest in resolving disputes rather than search for truth ( Europe the opposite)
ii. Court room is limited theater. You see a limited picture in attempt to resolve the dispute. No effort to bring ALL the facts together to have an absolute truthful resolution.
b. Mathews Testbalances Government Interest against Private Interest– 4 factors: (one side always has to be government). Must be life/liberty/and property for Mathews test to apply
i. Private Interest
i. Concerned about government taking away someone’s life/liberty/property (especially innocents)
1. Even if we are sure he is guilty you don’t want to lock him up as we are country of values and want to give trial.
ii. Government Interest
i. E.g. Concerned with National Security in Hamdi Case.
iii. Risk of Erroneous Deprivation of Private Interest
iv. Value of Additional/Substantive safeguards.
i. Most of the time Mathews test is used to safeguard government interest.
i. Some have criticized the test as being too subjective
1. If Hamdi was higher up Al Qaeda, it would be more skewed toward government.
ii. E.g. Hamdi case concerned enemy combatant captured in Afghanistan who was American Citizen. Plurality voted that Government does have ability to detain
i. Under Mathews Test, Hamdi deserved a hearing and notice but rebuttable presumption was in favor of government and government can use hearsay evidence.
v. Fairness v. Cost and Efficiency (speedy) tension
i. RULE 1: The rules govern the procedure in all civil actions and proceedings in the U.S. district courts, except as stated in Rule 81. They should be construed and administered to secure the JUST, SPEEDY, and INEXPENSIVE determination of every action and proceeding.
c. NOTICE and HEARING: (use Mathews test for all):
i. Hearing-Need notice to contest accusations
i. Snaidach: Woman who had her wages garnished by government without hearing was ruled to have been denied due process
ii. Fuentes:. woman who paid 2/3 off on stove and defaulted lost stove without hearing
i. sympathetic plaintiffs might have influenced court as well.
ii. Discretion IS Key in Repossessing Property: (Replevin):
i. General rule is you can’t repossess unless you meet these requirements:
i. There were provisions for the exercise of real judicial discretion in issuing prejudgment orders.
ii. Posting of a bond (other side has to post bond before they seize your stuff)
iii. Quick post seizure hearing.
i. e.g. Mitchell who owed $514 on stove, stereo, etc. was NOT deprived of due process because:
ii. e.g. bank accounts seized without due process and hearing was violation.
iii. Lein, where burden pretty low, may be imposed since that interferes with ability to sell. Not really confiscation.
iii. Standard Way of initiating a lawsuit. Any deviation needs specific justification (notice/opportunity for hearing are key)
i. Need notice and to tell what the other party can do to contest before the govt. can take away life/liberty/property
ii. What is taken is also key
i. E.g. Case which had a personal quarrel leading to a placement of lien on house in connection with tort action violated due process since Injury to state interest was low but big loss for Δ.
ii. E.g. Don’t need hearing when terminating social security benefits (Mathews test)
iv. Rule: Need reasonable, calculable notice. If there is cheaper, better alternative to give reasonable, calculable method, then you can use that. 2 Questions
i. Is the Method Reliable?
i. Green: where notice for apt. hearing posted on the door notorious for kids tearing it down was not a reliable method when Mail could have been used
i. Dissent said mail was sometimes broken into also. Also undemocratic to overturn state law/landlord is losing money and has interest in speedy resolution as well.
ii. How available is alternative method? (easier/harder)
i. Rule: It is Constitutionally SUFFICIENT but NOT required to use mail
ii. Policy: Potentially better to use multiple methods to try to serve.
iii. Mullane: Publishing notice in mail ok if you don’t know where people are, but if you can get their addresses, publication not sufficient and you really need to mail it.
d. RULE 4: SERVICE of Process
i. 4(c)(1):Summons must be attached to the complaint
i. You don’t want to anger the judge who wants to be sure that notice was served or he can dismiss the case.
ii. 4(c)(2)Delivered by any person at least 18 and not party to case
i. Personal Delivery: In hand service makes sure somebody gets it but not only way.
iii. 4(e)(2)(B): Person getting the service must be of “suitable age” and has to be at the person’s being served abode to person who actually lives there. (i.e. need to serve at their abode)
i. e.g. Suitable age may be considered 16.
ii. e.g. Someone who is a citizen of a state, redecorates the home may be considered to have this as their abode.
iii. Khashoggi:. Saudi billionaire with multiple abodes was se
i. Provisional Relief-Party gets remedy at beginning of lawsuit.
i. Secure the Judgment-garnishing wages/taking back items before hearing (e.g taking stove, glasses where Δ missed payments on)
i. Policy: P’s wanted to make sure the resources were there to collect if P won.
i. E.g. lein on house
ii. TRO (temporary restraining order) (or temporary injunction). Much shorter period of time (also ex parteàother party not there).
i. Need to Show:
i. IRREPARABLE injury/emergency
ii. Why you weren’t able to show notice
1. Only Effective and hence necessary to enjoin people who didn’t have notice like all marchers.
ii. Walker: SCOTUS upheld temporary injunction order violation conviction against civil rights workers because they didn’t file any motion prior to just disregarding and marching. Birmingham was using racist double standards and trying to ban them from marching
i. Dissent said that challenge after violation should have been sufficient given the racist unfair standards
ii. Policy:Majority is worried about maintaining the POWER of COURTS
iii. Procedure can Trump Substantive Law Sometimes!
i. Trans-substantive nature of law-Law applies to all situations so to disregard it even when we have morality on our side threatens law.
1. In Walker, Δ’s had moral force but could not disregard procedure and set bad precedent
ii. King had 4 options after injunction offered: (Obey, motion to dissolve, apply again/postpone march, defy)
iii. Preliminary injunction- RULE 65: Can only issue it on notice of adverse party. There’s hearing before preliminary injunction issued.
i. TRO and Preliminary injunction maintain the status quo
ii. Terry v. Now: Series of injunctions issued to prevent ProLife protestors from trespassing/blocking clinics. Fined for violating
iii. BAGWELL TEST (to determine for contempt of court order): Fines need to be Coercive, not Punitive. 4 factors (don’t always need majority of factors on one side to win):
i. 1) Look at purge provision (this is NOT the most important factor)