Civil Procedure B – Fall 2010 – Hofmeister
I. Introduction
A. Procedural Rules and Judicial Power
· United States v. Hall, 1972 page 13
o Facts: there was racial unrest because the schools had been segregated and were becoming desegregated. The Florida Black Front was instigating violence- came to the school property. The court issued an (ex parte) injunction that prevented them from coming onto campus. The injunction stated, “anyone having notice of this order who violates any other terms shall be subject to arrest…” Hall went to the campus and told police his purpose for being there was to violate the court order. He certainly had notice of the injunction.
§ Hall makes two claims-
· Common law- He wasn’t a party to the original litigation, therefore he can’t be bound by the order. Relies on Alemite Manufacturing Corp. v. Staff, where the court held that a third party who violated a patent could not be held in contempt- only when the ∆ violates the injunction can he be held in contempt.
· FRCP 65(d) claim- an order is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
o Issue: whether the injunction was binding on Hall (∆), who was not a party to the case, but who was given notice.
o Holding: the district court had the power to protect its ability to render a binding judgment between the original parties to the Mims litigation by issuing an interim ex parte order against an undefinable class of persons. Willful violation of that order constitutes criminal contempt.
§ The court distinguishes Alemite- in that case, the third party’s action didn’t impact the rights of the main party.
§ Hall’s relationship with the Mims litg. falls within that contemplated by FRCP 65(d).
§ Wisdom makes an analogy to in rem cases in which the court can bind everyone, even those without notice. Such cases involve a particular piece of property. Hofmeister thinks this analogy is a bit of a stretch.
o Did the court get it right? In situations where safety is an issue, the court is justified in placing reasonable time, place and manner restrictions on people.
o There is a tension between procedural rules and individual cases. There may be instances where notions of justice or the inherent power of the court can make application of a rule difficult.
§ Procedural rules are incredibly important to power: who has power, who can restrain power, and the power of words.
§ We see the tension in the drafting stage of laws and in applying the rules to the facts.
· There are three conceptions of procedure-
1. Procedure is justice (Hofmeister takes this view).
2. Procedure’s purpose is to assist justice. When a procedural rule leads to injustice, it should be overruled.
3. There is no real distinction between procedure and substance. Winners and losers are what matter in litigation.
B. Contempt
· Walker v. City of Birmingham, 1967 page 165
o Facts: Civil Rights demonstrators made attempts to get an permit to have a parade, but they were denied the permit. The commissioner got an injunction prohibiting civil rights leaders from engaging in or encouraging demonstrations. They went ahead with the demonstrations anyway and were subsequently arrested for contempt of the injunction. While he was in jail, 8 clergymen took out a full-page ad denouncing the demonstrations. “Letter from Birmingham Jail” was King’s response to that ad.
o Issue: whether we lie under an obligation to obey unjust legal directives, including directives ordering out punishment for disobeying other unjust directives.
o Collateral bar rule- one cannot challenge a court order that he/she has violated. The court upholds the collateral bar rule, and therefore the arrests.
§ The ordinance requiring a parade permit was not void on its face, and the petitioners were aware of the injunction, so they were not constitutionally free to ignore the procedures of the law and carry their battle to the streets. The court suggests that the collateral bar rule might not apply if the injunction is void on its face (exception).
§ Even though petitioners might have been denied due process when they were denied the parade ordinance, they were not free to violate the injunction.
o King’s arguments- he appeals to a higher law (God), morality and religion. He also likens himself to extremists throughout history. He clothes himself in the ideals of American equality.
o Brennan’s dissent- he thinks the court is driven by the fear of the civil rights movement.
o Warren’s dissent- procedure’s purpose is to assist justice. He focuses on the facts. The commissioner didn’t go through the rules of process to deny the permit, therefore it is not fair that the court is applying the procedural rules so strict here.
· Letter from Birmingham City Jail, page 173
o Distinguishes between just and unjust laws. A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law; a human law that is not rooted in eternal and natural law.
§ In practice, an unjust law is a code that a majority inflicts on a minority that is not binding on itself à a difference made legal. A just law is a code that the majority compels a minority to follow that it is willing to follow itself à sameness made legal.
o Lukewarm acceptance is more bewildering than outright rejection. He is more upset with white moderates than with the KKK.
II. Due Process
A. The Values of Process and Elements of a Hearing
· It is not clear what due process means. You have to think about what DP is required in a situation.
· Totally full process would include the ability to challenge witnesses, provide oral testimony/present evidence, have a group of peers decide (neutral fact finder), appeals process, access to counsel, notice of charges, notice of the laws, quick resolution yet time to marshal evidence in your favor, enforcement of the outcome, consistency in applying legal rules, interpreters/court reporters/transcripts.
o The due process clause requires us to balance what is necessary and what is affordable.
o Costs- administrative, potential for sensitive information to be leaked (terrorist cases), the need to be continually paid benefits in termination of benefits cases.
· Michelman- “The Supreme Court and Litigation Access Fees” page 35
o Values behind allowing people to litigate-
1. Dignity values- concern for loss of self-respect if denied the ability to litigate.
2. Participation values- need to have your will counted.
3. Deterrence values- litigation is a way to influence behavior in socially desirable ways.
4. Effectuation values- litigation is a way to get what is rightfully yours.
· Two step inquiry-
1. Is process due?
§ No state- it has to be a state action. DP doesn’t apply to private actors.
§ Shall deprive- must be some sort of deprivation.
§ A person- it doesn’t say citizen. It could be a corporation or alien.
§ Of life, liberty or property. In Kelly, welfare is potentially a property benefit. However, one could argue that it isn’t any of these because the person is still alive, still has property and is still free. NY conceded that process was due, however.
2. If it is due, how much process is due? This is a policy argument. This is where the controversy lies because we must balance what is necessary with what is affordable.
· Goldberg v. Kelly, 1970 page 27
o Facts: John Kelly, acting on behalf of New York residents receiving financial assistance either under the federally-assisted program for Families with Dependent Children or under NY’s home relief program, challenged the constitutionality of procedures for notice and termination of such aid. Originally there was no official notice or opportunity for a hearing for those whose aid was terminated, but after he commenced this litigation, NY implemented a hearing procedure.
o Issue: does a state’s termination of public aid, without affording the beneficiary a hearing prior to termination, violate notions of procedural due p
nal jurisdiction-
1. The Full Faith and Credit Clause- full faith and credit must by given in each state to judicial proceedings in every other state.
2. The Due Process Clause- in order for the judgment to be enforceable in other states, it must first be valid. In order to be a valid judgment, it must satisfy the DP clause.
· Pennoyer v. Neff, 1877 page 612
o Facts: There are two distinct lawsuits, L1 and L2. L1 is Mitchell v. Neff- Neff hired Mitchell for attorney services, but didn’t pay. Mitchell sued Neff in Oregon state court. Neff is not a resident of Oregon, nor does he own property in Oregon. Service was by publication and Neff was not personally served. Neff didn’t show up so the court entered a default judgment. Neff subsequently acquired a tract of land in Oregon and Mitchell had a sheriff sell that land because under Oregon law, Neff owes Mitchell. Pennoyer bought the land. Neff sues Pennoyer to recover his land- Pennoyer has a deed from the sheriff, Neff has a deed from the federal gov’t.
o Issue: is Pennoyer’s deed (the latter-issued deed) valid?
§ The procedural problem is service by publication in a state in which the defendant was not located. Does such notice afford the defendant due process?
§ Two methods of challenging the judgment-
· Appeal the default judgment. The risk is that he might be tagged w/ service when he comes to Oregon to file.
· Collateral attack- the problem with this is that he may not be able to argue the merits of any substantive claims he might be able to defend.
o Ways the Oregon court could have obtained jurisdiction over Neff-
§ In personam- serve him while he is within the Oregon state lines.
§ In rem- the court may attach land that the defendant owns in that state. This is for disputes over land.
§ Quasi in rem- the court can get jurisdiction over a ∆ even if that ∆ isn’t in the state if that ∆ owns property in that state. Neff didn’t own the land when Mitchell first sued.
§ Status jurisdiction- mostly family law cases.
§ Consent- an out of state resident can consent to jurisdiction.
§ Implied consent- a state can have a statute requiring anyone who enters a K in that state to appoint an agent in that state to receive service for that person (SOS is default).
o Holding: the personal judgment recovered in Oregon against Neff, a non-resident, was without any validity. Newspaper publication of notice was not sufficient here.
o à This case rests the notion of personal jurisdiction on the 14th Amendment. It provides for a very territorial view of jurisdiction. Each state is the master of its own territory. There is very little room for the court of one state to reach out into another state and have jurisdiction.
o The problem with this type of jurisdiction is that it might “chill” interstate commerce if individuals are concerned about potential lawsuits against out of state businesses that they know won’t be able to be adjudicated.
· Hess v. Pawloski, 1927 page 623
o Facts: Hess, a resident of PA, struck another with his car while driving through MA. The MA court established personal jurisdiction over Hess by statute. The stated that people driving in MA consent to the registrar being their agent for service of process (implied consent). The court has in personam personal jurisdiction.
