Civil Procedure, Silver, Fall 2015
Due Process
Due Process Clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law”
Elements of Due Process:
Timely notice
Timely opportunity to be heard (call witnesses, know opposing evidence, record, statement of reasons, public attendance, judicial review)
Personal jurisdiction (unbiased tribunal, decision based exclusively on evidence)
Right to counsel (only provided by state for felonies)
Purpose of Due Process: to protect property from arbitrary, unfair, or mistaken deprivations.
Deprive:
The value of the property deprived and duration (temporary v. permanent) of the deprivation are not important (Fuentes, “stove and record player replevin” and Doehr “75K housing attachment from battery”).
Remedies:
(R.64, 65, 68)
Prejudgment Seizures (1)/(2): Where a state actor effectuates a deprivation of property, the deprived party must receive appropriate due process under the law.
Bar: There must be a hearing that establishes at least the probable validity of a deprivation before deprivation, but the form of the hearing is left to the legislature (Fuentes, [due process protects a higher goal than government efficiency, pg. 38, fn.22]).
Exception: extraordinary circumstances: (1) necessary to secure important government/public interest, (2) need for speed, (3) legitimate exercise of existing government power [taxes, etc.] (Fuentes [dicta]).
Sufficient Safeguards: where there are sufficient safeguards to protect the rights of the debtor, statutes can be found constitutional even if the hearing is after the seizure (Mitchell [but see N. Ga. Finishing – insufficient safeguards]; Doehr). Note: does not appear to apply to criminal (Kaley “illicit gains to fund legal defense”) or to notice per se (Flowers “divorce results in failed mail notie”).
Matthews Test: (1)+(2) < (3)? (If yes, sufficient process) – for purely government
Consider affected private interest
Consider risk of error and value of safeguards
Consider government interest (including burden of additional procedure)
Doehr Modified Matthews Test: (1)+(2) < (3)? (If yes, sufficient process) – for private actors using government process
Consider affected private interest
Consider risk of error and value of safeguards
Consider interest of party seeking prejudgment remedy with due regard for government interest in providing procedure and forgoing safeguards.
Silver Note: This distinction of before and after may not make a difference because the real issue is one of funding for the litigation. Without funding to post a bond, how can they get a fair hearing before anyway. There is also no temporal component to the actual due process clause.
Post-Judgment Remedies:
Declaratory Judgment: §2201, 2202 govern. Declaratory judgment is a declaration of the legal rights of the parties.
Note: commonly used by insurance to define what is required when there is uncertainty
Injunctions: R.65 govern. Injunctions are a court order mandating conduct or that conduct not occur. Violation is punished by contempt of court (moves the head of the docket). To get injunctive relief, there must be threat of irreparable harm and the injunction must be tailored specifically to threat (balance hardships of π and ∆, consider public interest, consider if court can enforce). Note: improper tailoring can create major due process issues because broad injunctions can impact many entities not party to the trial.
Preliminary Injunction: R.65(a), (d)
Temporary Restraining Order (TRO): R.65(b), (d)
Permanent (Final) Injunction: after trial – can last forever, but typically limited to “as long as necessary”.
Damages:
Actual/Compensatory Damages: compensation for losses incurred. Adequate compensation is that which restores the injured party to where the party would have been had the misconduct not occurred (economic loss + noneconomic loss [pain and suffering, hedonic]). Serve as deterrent to parties behaving in an economically rational manner.
Noneconomic amounts controversial: Hard to monetize so jury has to make a value judgment. Arguments against: limit (frequently occurs in med. mal.) or eliminate (replace with insurance). Counter: would likely be very high cost for insurance, people are disinclined to pay for costly insurance where the probably of ever needing it is very low (i.e.: comprehensive lif
N. Ga. Finishing v. Di-Chem, Inc. (1975) – pg. 47
Ex parte garnishment unless bond posted was unconstitutional because hearing was dependent on posting of bond (otherwise must wait until end of trial). No safeguards.
Connecticut v. Doehr (1991 – 5-4 decision) – pg. 53
Tagline: “$75K housing attachment from battery”
Statute (CT): prejudgment attachment of real property without prior hearing or notice requires (1) complaint, (2) affidavit/oath that there is probably cause to sustain (no bond), (3) judge reviews, (4) first notice: attached in hall of records [record notice], (5) post-seizure notice that informs respondent of the right to hearing (a) to claim lack of probable cause, (b) to request vacation, modification, to substitute a bond, and (c) claim some of property was exempt, (6) first hearing
SC: Applied modified Matthew’s test: (1) significant (clouds title, impairs ability to convey, taints credit, makes hard to get equity or second mortgage, can force default), (2) substantial (probable cause not clear, safeguards not adequate [double damages]), (3) minimal (no existing interest in the home/attachment). No need for speed applies (real property hard to hide, not trying to sell).
Jones v. Flowers (2006) – Canvas
Tagline: “divorce results in failed mail notice”
F: G gets divorced and is living at a different address. He does not pay taxes which results in a letter of delinquency. Delivered to wrong address and was returned to government as undeliverable. State auctions the house to F two years later and sends another notice (which is undeliverable). F serves in person and plasters the house.
SC: When mailed notice is returned as undeliverable, the government has notice that notice was not property served and accordingly must take additional reasonable steps to notify.
