CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 1 of 7 I. NOTICE A. Purposes of notice: 1. The other party has a right to be heard. 2. Increases the likelihood of an accurate result in the ensuing litigation. 3. What if a beneficiary has never shown up? Is it still worth while to send notice? There is an intrinsic value to notice. You have a right to know if your property is being taken. We are less concerned with efficiency. 4. Service of process is the ceremonial method in which the sovereign’s right to exercise PJ is validated. B. The Constitutional Requirement 1. Notice must be reasonably calculated to reach the recipient: An elementary and fundamental requirement of due process in any proceeding to be accorded finality, 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. (a) Allows for proper response: The notice must be of such a nature as reasonably to convey the required information, and it must afford reasonable time for those interested to make their appearance. (b) Reasonably certain to inform: Notice cannot be a mere gesture. The method must be reasonably certain to inform those affected or the form chosen must not be substantially less likely to bring home notice that any other feasible or customary substitutes. 2. Methods of giving notice: (a) Personal service: Personal service of written notice within the jurisdiction is always adequate for any proceeding. (b) Mail: Generally, certified or registered mail is adequate. Personal service is not indispensable to residents and often is unnecessary for nonresidents. Still, must consider whether notice by mail is reasonably calculated to reach the interest party. Exception: The Court has refused to uphold notice mailed to a person known to be mentally incompetent. (c) Publication or posting: Generally, publication or posting is not a reliable means of notification when a parties’ interest and addresses can be ascertained. (1) Exception for evasion and contingent interests: The law permits notice by publication where it is not reasonably possible or practical to give more adequate warning. It is not unreasonable to dispense with more certain notice for those whose interests are either conjectural or in the future or, although the could be discovered, do not in due course of business come to the knowledge of the P. (2) Exception for physical property: In general, posting of notice on physical property is adequate notice unless the use of the mail is more likely to reach the D. Greene. (i) Rationale: Reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. A State may in turn conclude that the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests. CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 2 of 7 (ii) Two cases where posting was not adequate: 1. In a tax foreclosure case, notice must be mailed to the mortgage holder. Notice to the property holder is inadequate. Mennonite v. Adams. 2. In Tulsa Collection v. Pope, the court held that in a suit to settle a decedent’s estate, published notice to creditors in general was insufficient when the estate knew of the claim of a particular creditor. Notice by mail was required. 3. Receipt is not necessary: Does the Constitution require that notice actually be received? No. The standard is whether the notice will reasonably be certain to reach the other party. If it is reasonable that the method of notice will reach the other party, then the method is not unconstitutional if it does not reach the other party. 4. Multiple defendants: When there is a large group of Ds, notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objection sustained would inure to the benefit of all 5. Impact of administrative issues: Practical matters such as expense and the availability of names and addresses should be considered as well. 6. Notice and hearing are waivable: The right to notice and hearing are waivable rights. C. Statutory Requirements 1. Generally: All court have rules or statutes that spell out in detail the mechanics and form for giving notice and are frequently more demanding than the Constitution. Service of process must comply with both the statutory and constitutional requirements. 2. Federal requirements for notice: Rule 4(e) states that service on an individual, other than an infant or an incompetent person, may be effected in any judicial district of the United States through any of the following methods : (a) Rule 4(e)(1): Pursuant to state law (1) Law of forum state; OR (2) Law of service state. OR (b) Rule 4(e)(2): (1) Personal service; OR (2) Leaving a copy of the summons and complaint: (i) at the individual’s dwelling house or usual place of abode (ii) with some person of suitable age and discretion (Determined by facts of the case, but need not be an adult.) CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 3 of 7 (iii) then residing therein (Some forum states may not allow this, but you can do this in federal court. Can be a doorman or a housekeeper.); OR (3) Leaving a copy of the summons and complaint with an authorized agent. (non-resident motorist statute) 3. Dwelling house or abode defined: What constitutes “the individual’s dwelling house or usual place of abode?” A person can have two or more “dwelling houses or usual places of abode,” provided each contains a sufficient indication of permanence. Other possibilities include: (a) A hotel room; yes. (b) Parental home of a college student while the student was away at school; yes. (c) The penitentiary from which a prisoner escaped; no. 4. Service upon a corporation or partnership: Rule 4(h) states that service upon a corporation (domestic or foreign) or upon a partnership or other unincorporated association is effectuated by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other authorized agent (if authorized by statute, a copy must be mailed to the D). 5. Service upon individuals in a foreign country: Rule 4(f) states that service on an individual, other than an infant or an incompetent person, may be effected in a place not in any judicial district of the United States through any of the following methods: (a) By any internationally agreed means reasonably calculated to give notice OR (b) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice: (1) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; OR (2) as directed by the foreign authority in response to a letter rogatory or letter of request; OR (3) unless prohibited by the law of the foreign country, by (i) delivery to the individual personally of a copy of the summons and the complaint; OR (ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; OR (c) by other means not prohibited by international agreement as may be directed by the court. 6. Territorial limits on federal service: Under Rule 4(k)(1)(A) only has jurisdiction only if the state in which it sits would have had jurisdiction. Careful, Rule 4(k)(1)(B) does not apply to the original D. Nationwide service of process is only available in areas such as antitrust, securities, bankruptcy, and interpleader. 7. Service is waivable: An D can waive service of a summons. Rule 4(d). CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 4 of 7 8. Serving the summons: Rule 4(c)(1) provides, “A summons shall be served together with a copy of the complaint.” After the summons has been served, subsequent pleadings, motions and other papers can be served by mailing a copy to the other party or his attorney. Any non-party at least 18-years old can serve process. 9. Proof of service: Following service, the person effecting service is required to file with the court proof that he did so. If a civilian serves process, this proof must be by affidavit. Failure to prove service of process does not affect the validity of the service. D. Immunity: Witnesses, litigants or lawyers who come into the state to participate in one suit may be immune from process concerning other suits. Immunity is also granted to person who are induced to enter the state through fraud or deceit. CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 5 of 7 II. OPPORTUNITY TO BE HEARD A. Generally: The DPCs of the 5th and 14th Amendments require an opportunity to be heard. Full-blown trials are not required. B. What is constitutes the opportunity to be heard?: A hearing must be “at a meaningful time and in a meaningful manner.” In the present context these principles require that: 1. Notice: a recipient have timely and adequate notice detailing the reasons for the hearing. 2. Confront witnesses and present evidence: an effective opportunity to defend by confronting and crossexamminin any adverse witnesses and by presenting his own arguments and evidence orally. The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. 3. Right to retain an attorney: the recipient must be allowed to retain an attorney if he so desires. 4. Limitations on the decision maker: the decision maker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing. The decision maker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law. An impartial decision maker is essential. 5. No formal trial required: The pre-termination hearings need not take the form of a judicial or quasijudiicia trial. C. Other implications of the Goldberg v. Kelly decision: 1. Two questions frame the discussion of pre-deprivation hearings: (a) Is there a protected liberty or property interest and, if so, how much process is due? (b) What organs of government are to determine which interests deserve protection and to assess the adequacy of process? 2. Welfare benefits: Some would suggest that statutory entitlements (such as welfare) are forms of property or liberty. The right to argue one’s entitlement to welfare benefits clearly is circumscribed if a hearing does not precede the termination of benefits. 3. Interest of creditors: The D’s right to a hearing runs counter to the interest of creditors who wish to recover goods sold on credit or to collect debts after default in payments through garnishment or replevin. If recovery must await the outcome of a hearing, the good involved may be destroyed, concealed, depreciated or encumbered. 4. Negative impact on the poor: A excessive concern for the opportunity to be heard may have deleterious effects: courts may become paternalistic at the expense of individual liberty, or creditors faced with the higher cost of litigation may exit the market and limit credit opportunities for the poor. 5. J. Black’s dissent: (a) Inevitable logic of the approach taken will lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review. (b) Government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 6 of 7 (c) Many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility. D. Weighing the costs and benefits of a prejudgment hearing: The Mathews v. Eldridge three prong test measures the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter: 1. What is the private interest that will be affected by the official action? (a) Necessities: Does the private interest involve entitlements pertaining to access to money, food, shelter or medicine? Such deprivations trigger the greatest due process concerns. (b) Real property: Are there property interests involved? Even the temporary or partial impairments that attachments entail are sufficient to merit due process protection. An attachment of property may cause a default of mortgage or lower credit ratings. (c) Length of deprivation: The possible length of wrongful deprivation of benefits also is an important factor in assessing the impact of official action on the private interests. 2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards. (a) Standard of proof: Do the procedures rely on a subjective standard of probable cause that relies on nothing more than good faith? Or is the matter an uncomplicated one (such as determining the existence of debt or delinquent payments) that lends itself to documentary proof? (b) Post-deprivation hearings: Is a expeditious post-deprivation adversary hearing provided for? Is there a high reversal rate for appealed cases? Is there judicial review available? (c) Ability to rebut: Does the hearing give the D an opportunity to state his case? (d) Safeguards: Posting of a bond (in pre-attachment hearings) by the P may be a viable safeguard, but it may also preclude those who are less wealthy from seeking relief. Another solution (with similar problems) is awarding the D damages when an action is brought without probable cause. 3. The government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (a) The importance of the government’s interest: Where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing. This concept has been applied in the following situations: (1) suspension of exemption from stock registration requirement (2) seizure of mislabeled vitamin product (3) seizure of food not fit for human use (4) adoption of wartime price regulations (5) disqualification of a contractor to do business with the Government (6) summary dismissal of a public employee was upheld because “in [its] proprietary military capacity, the Federal Government . . . has traditionally exercised unfettered control,” and because the case involved the Government’s “dispatch of its own internal affairs. CIV PRO – NOTICE & THE OPPORTUNITY TO BE HEARD 2/5/2008 7 of 7 (b) Cost-benefit analysis: How much does the current process cost [see private interest above]? What would the additional process have cost [e.g., the continuance of benefits and increased number of hearings]? How much would it have reduced errors? What would have been the savings, were such error reduced? At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost. (c) Disputes between private parties: This factor can be adjusted for disputes between individuals by giving principal attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. (1) What are the interests of the P: Does the P have a large sum at stake or an existing interest in the property? Interest? Is he likely to prevail at trial? (2) Must have exigent circumstances: Is it likely that the D will dissipate or conceal his assets of the prejudgment remedy is not granted? Is the D likely to sell or encumber his property? (3) Type of action: Attachments generally are confined to disputes between creditors and debtors, as oppose to tort actions. (4) Government’s ancillary interest: State’s substantive interest in protecting any rights of the P cannot be any more weighty than those rights themselves. Moreover, the State cannot seriously plead additional financial or administrative burdens involving pre-deprivation hearings when it already claims to provide an immediate post-deprivation hearing. 4. Supreme Court dicta regarding the posting of a bond: Does due process require the P to post a bond or other security in the absence of pre-deprivation hearing or a showing of exigent circumstances? In its dicta the Supreme Court ruled that both were required. But, what if the P can’t afford to post a bond? E. Provisional relief: Under Rule 65(b), a temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.