CIVIL PROCEDURE
►I. Prejudgement Seizures / Opportunity to Be Heard (Due Process)
A. Introduction – At common law, a P could have a D’s property seized as a method of coercing the D to appear for trial. Over time, this seizure came to be used to provide security for any judgment the P might obtain in the action. Very often, such prejudgment remedies were available before D was given notice of the action. Litigation can take a long time, and a P may reasonably fear that during the course of litigation, a D may hide his assets, fraudulently dispose of them, move from the jurisdiction, or otherwise act in such a way that the P will end up with a judgment but also an assetless D.
B. Procedural due process requirements for prejudgment seizure. Due Process requires government entities to minimize the erroneous deprivation of property or liberty. Due Process provides people with the opportunity to be heard. There are a set of remedies available when our right to Due Process is violated.
1. Fuentes v Shevin – Invalidated FL and PA procedures for writ of replevin that authorized the seizure of property because there was no provision for notice and a preseizure hearing.
A) Purpose of hearing – The Court emphasized that the notice and hearing requirement ensured a “fair process of decisionmaking,” but was not clear on whether this was limited to reducing the risk of erroneous issuance of writs of replevin. A hearing is provided by a law governing the right to be heard.
B) Alternative safeguards against error – The plurality viewed alternative safeguards against error as significant factors in determining the type of hearing afforded, but “far from enough by themselves to obviate the right to a prior hearing of some kind.” One dissenter argued that the bond requirement, coupled with the creditor’s desire to have the transaction completed, should provide sufficient protection.
C) Unimportance of cost of hearing – The Court placed little importance on the possible cost of more elaborate hearing procedures, noting that “[t]he Constitution recognizes higher values than speed and efficiency.”
D) Exception for “extraordinary situations” – The plurality recognized in dictum that the right to preseizure notice and hearing could be overcome in “extraordinary situations.” It specified three factors that appeared all to be necessary:
1) Such seizures should be directly necessary to secure an important governmental or general public interest. Ie. Public health or the war effort.
2) Such seizures without notice may occur only where delay would be harmful to the public interest; and
3) Such seizures should be limited to circumstances in which the state controlled the initiation of proceedings.
*E) Repossession of goods – Violation of due process occurs when a statute:
1) Allows repossession merely on the creditor’s conclusory statement that he owns the property;
2) provides for a writ of possession issued by a clerk rather than a judge; and
3) does not provide for an immediate post-repossession hearing
F) Class Discussion
1) Timing of Hearing – The opportunity to be heard comes too late since it comes after the fact. A post-deprivation hearing may not be meaningful to Fuentes. Although it gives her the opportunity to retrieve her property, she is still harmed from the taking.
2) Pr
cost of auto purchases, at least for the poor.
2) Result of more procedures – It will drive more people to self-help (through thugs) because they do not have the assistance of sheriffs or officers and they may be prosecuted for a breach of the peace or something more significant if they try to do the same kind of things themselves. Moreover, remedies like garnishment do not have a self-help analogue.
3) Due process applies to government – In Flagg Bothers, the SC upheld dismissal of suit because there was no “state action” (a requirement of the 14th Amend) involved in the sale. There was a total absence of overt official involvement.
4) Example of “extraordinary” situation – In Calero-Toledo v Pearson Yacht Leasing, P’s yacht which was leased to 2 PR residents was seized by PR when found to contain drugs. Later forfeited to gov’t. (i) Seizure serves significant gov’t purposes because of public interest in preventing continued illicit use of property and in enforcing criminal sanction. (ii) Preseizure notices and hearing might frustrate the interests served by the statute since the property seized will often be the sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning were given. (iii) Unlike Fuentes, seizure is not initiated by self-interested private parties. Commonwealth officials determine whether seizure is appropriate under PR statutes.
