Chapter 1: Due Process of Law
A. Notice and Opportunity to be Heard
1. Notice: The Constitutional Dimension
Mullane v. Central Hanover Bank and Trust Co.
-Mullane standard = Due Process Clause prescribes a constitutional minimum: an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is that: notice must be reasonably calculated, under all circs, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
Types of Service: personal service (walk up and hand it to you in person or a member of the family); service by mail; service by posting; service by publication
Greene v. Lindsey
Facts: Statute = in forcible entry and detainer actions, service of process may be made by posting a summons on the door of a tenant’s apartment if tenant or member of family over 16 years of age is not on premises to receive it.
– Tenants in a housing project were served like this and claimed never to have seen the posted summonses and stated that they did not learn of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed.
Issue: Whether posting service on the door when the tenant is not home as provided by the state statute is constitutionally sufficient.
Holding: No. Statute failed to afford tenants notice of proceedings initiated against them req by DP Clause of the 14th since, in a significant # of instances, reliance on posting pursuant to provisions of statute resulted in a failure to provide actual notice to the tenants concerned
– in failing to afford tenants adequate notice of proceedings against them before issuing final orders of eviction, statute deprived them of property without due process of law.
Reasoning: Fundamental requisite of due process of law is opportunity to be heard. The right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce, or contest. Personal service of a lawsuit guarantees actual notice of pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. (Mullane)
– Due Process Clause does prescribe a constitutional minimum: an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Mullane)
Is the method of service reasonable?
1) is the method of service reliable? 2) are there feasible alternatives?
– in circs of this case, merely posting notice on the apt door did not satisfy min standards of DP
– where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings.
Rule: Where posting is an unreliable method of service, alt. methods should be used.
Posting in an eviction proceeding without some backup that method is not constitutional.
Dusenbery v. United States
– notice by certified mail is sufficient to put a prisoner on notice of the administrative forfeiture of cash seized at the time of his arrest
– actual notice is not required under Mullane
– methods used were reasonably certain to inform the prisoner
Jones v. Flowers
Facts: Owner of a home was paying wife’s mortgage and after paid off didn’t pay prop taxes by mistake as mortgage co had done previously; commissioner sent 2 letters via certified mail which were returned Issue: Whether sending notice by certified mail which is returned unclaimed is sufficient service
Holding: No. Due process provisions of 14th Amend. required state to take additional reasonable steps to attempt to provide notice to the owner before selling property, if practicable, as: (1) When a letter was returned by the post office, the sender ordinarily would attempt to resend it, if practicable, especially when the subject matter concerned such an important and irreversible prospect as the loss of a house. (2) In the instant case: (a) The state had good reason to suspect when the notice was returned that the owner was no better off than if the notice had never been sent. (b) Deciding to take no further action was not what someone desirous of actually informing the owner would have done. (c) Some contentions by the state concerning the owner’s legal obligations did not relieve the state of its constitutional obligation to provide adequate notice. (d) several reasonable steps could have been taken by state to attempt to provide notice. (e) State’s use of certified mail made state aware that the owner had not received notice.
Rule: While due process does not require that a property owner receive actual notice before the government may take his property, when the government learns that its chosen method of notice has failed, Mullane requires that the government take additional steps.
You can serve someone electronically if they consent in writing but it doesn’t count if you learn that they didn’t get it. Electronic filing is also permitted.
Constitutional notice is the minimum, statute could require more; cannot require less.
Serving the attorney doesn’t count as serving the client unless the attorney is authorized to act as an agent for the client to accept service.
2. Notice: Constitutional Requirements Ritualized: Rule 4
– under rule 4(c) a summons must be served with a copy of the complaint.
– summons is the court exercising its power over the party
– 4(e) provides the basics for service; as long as the state prescribes a method of service, using that method suffices under rule 4
– delivering a copy of the summons and of the complaint to the individual personally;
– leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
– delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
– failure to comply with rule 4 is a basis to dismiss a lawsuit
– Rule 5(b) now allows electronic service on parties who give their consent; such service is complete upon transmission (9th cir held foreign D could be served via email)
National Development v. Triad Holding Corp. & Adnan Khashoggi
Facts: US Corp. sought to compel foreign citizen to arbitrate a conversion action filed by them for funds appellant allegedly improperly converted when a joint venture was dissolved.
Issue: Whether the Olympic Tower apartment was Khashoggi’s “dwelling house or usual place of abode”, terms that thus far have eluded “any hard and fast definition.”
Holding: Yes. In highly mobile and affluent society, unrealistic to interpret 4(d)(1) so person to be served has only 1 dwelling house or usual place of abode at which process may be left.
– It cannot seriously be disputed that the Olympic Tower apartment has sufficient indicia of permanence. Khashoggi owned and furnished the apartment and spent a considerable amount of money remodelling it to fit his lifestyle.
Rule: A person can have multiple dwelling houses or usual places of abode sufficient for service provided each contains sufficient indicia of permanence and provided that the person is actually residing at the residence at the time service was effected.
Serving Process Abroad
– Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents requires each member country to e
– as a D you get more time to answer if you waive service
If you are requested to waive service and you don’t have a good cause for refusing service, the cost of service is born by the party refusing the waiver.
C. Due Process and Jurisdiction: The Limits of State Power over Persons and Property
– Personal jurisdiction = whether the court has the power to exercise jurisdiction over the parties; has nothing to do with the subject matter of the case
– is there enough of a connect between the court/sovereign and the parties?
– by filing suit the P has consented to personal jurisdiction
– personal jurisdiction is really an issue of jurisdiction over the D
1. Introduction: State Boundaries and Jurisdiction
– concept that courts must have jurisdiction is rooted in State’s power over people and property within its boundaries; state is sovereign over all tangible property located within its borders
– when there is a dispute over title, a writ of attachment symbolically seizes the property and gives the court in rem jurisdiction to adjudicate the conflicting claims of ownership
– in theory, court has jurisdiction over property, or res, and not over people claiming ownership
– in practice, seizure of the property effectively forces the claimants to come in and defend their interests or suffer a default judgment extinguishing their claims
– attachment was also the traditional basis for quasi in rem jurisdiction, which allowed seizure of a D’s property even when the property was not related to the claim before the court
– due process of law is still the measure of personal jurisdiction
2&3. Pennoyer v. Neff
Pennoyer v. Neff
Two lawsuits at issue in the case
1) Mitchell sues Neff for payment of legal fees in Oregon state court
– printed notice
– default judgment and gets writ of execution against Neff for land in Oregon
– sold property at Sherriff’s sale and Mitchell buys it and sells it to Pennoyer
2) Neff sues to evict Pennoyer saying the deed is void as there was no person jurisdiction/notice
– DC = affidavits filed regarding service were inadequate
– Supreme court says that the state court doesn’t have authority over the action
– Scotus = Mitchell had failed to attach the property before filing suit. “The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established.”
– each state’s complete power within its own boundaries completely excluded any exercise of extraterritorial jurisdiction by another state
– Art IV of the Constitution which requires “Full Faith and Credit shall be given in each State to the judicial proceedings of every other state” = a valid judgment of another state or federal court must be enforced according to its terms, without relitigating the underlying claims or defenses. But a judgment entered w/o obtaining personal jurisdiction over the D is invalid and void.
– a judgment entered without jurisdiction was unenforceable even by the state that rendered it and even on property within the state’s borders
